Cutter v. Richardson

Endicott, J. The declaration in the original action contained two counts: the first for use and occupation of certain premises according to an account annexed; the second, for rent of the same premises according to the terms of a written lease. After the bond now in suit was given, the plaintiff, without notice to these defendants, filed two additional counts. The third count, so filed, is obviously an amendment to the first, and the fourth to the second count of the original declaration. The defendants contend that these counts introduced a new cause of action, and that they are discharged from their liability as sureties on the bond; and also that, as the finding of the judge in the original action was general, the court cannot now say upon which count it was based. But it is evident, from an inspection of the record, that the finding of the judge in the original action was not based upon the second and fourth counts. Under the second count, as amended by the fourth, rent at the rate of $166.66 per month, for two months only, could be recovered; under the first count, as amended by the third, $306.50 per month, for use and occupation during the same period, could be recovered, deducting therefrom $220, paid by the tenant on account. The original finding of the judge was for $628, evidently based upon the first and third counts, but failing to allow the credit stated in the third count. This error was corrected by the plaintiff remitting a portion of the finding. It is clear, from this recital, that the amount thus finally determined, which is much in excess of any sum that could be found due under the second and fourth counts, could not have been based on those counts, but must have been on the first and third counts. See Brown v. Howe, 3 Allen, 528. Nor can it be said that the third count, in amendment of the first, introduced any new cause of action whereby these defendants were discharged. It was for use and occupation of the same premises, at the same rent, for the same length of time. It differed from the first only by stating in detail the mode in which the sum payable per month, for use and occupation of the premises, was ascertained and agreed upon, and contains a credit for money paid by the tenant, not stated in the first count. The rulings at the trial were therefore correct. See Mann v. Brewer, 7 Allen, 202; Wood v. Denny, 7 Gray, 540, 542, and cases cited. Exceptions overruled.