Frank v. Millen

Carroll, J. This is an action of contract against the surety on a bond to dissolve an attachment. In the action in which the bond was given, the plaintiffs were Morris Frank and Harry Falkson, copartners doing business under the .name of the American Dry Goods Company. After the bond was executed, the plaintiffs amended by changing the name of one of the partners from Morris Frank to William Frank, and by adding a third partner, Rose Frank né Falkson. By the amendment the three partners were alleged to do business under the same firm name, namely, American Dry Goods Company. No notice of the amendment was given to the surety. R. L. c. 173, § 121. In Mathews Slate Co. v. Sweeney, 219 Mass. 285, the plaintiff was described as the Mathews Consolidated Slate Company, and by amendment the Mathews Slate Company was substituted as the plaintiff. They were two distinct corporations. No notice of the amendment was given to the surety under R. L. c. 173, § 121. It was there held that, as the judgment actually recovered was in favor of a new party, to whom the defendant had not bound himself to pay, he was not liable as a surety on the bond. That case governs the case at bar. The defendant agreed to pay to the partners named the amount of the judgment recovered by them. Rose Frank was not, at the time, one of the plaintiffs. There has been no breach of the condition of the bond signed by the defendant. The judgment was in favor of William Frank, Harry Falkson and Rose Frank. A new party had been added and the defendant did not agree to pay the judgment recovered by them. There was, therefore, no breach of the bond. Mathews Slate Co. v. Sweeney, supra. Order dismissing report affirmed.