New England Grape Co. v. Fidelity & Deposit Co.

Wait, J. This is an action upon a bond given by a claimant to dissolve an attachment made by special precept in an action in which the New England Grape Company was plaintiff, Santo Bonfiglio was defendant, and the Fourth Atlantic National Bank was named as trustee. The writ in that action was entered in the Municipal Court of the City of Boston on October 23, 1920. Special precepts issued and were served on November 12,1921, and on February 1,1922, which named the Fourth Atlantic National Bank as trustee. On April 7, 1922, the plaintiff filed interrogatories to the trustee. On April 20,1922, the bank answered stating under [303] oath that on November 12, 1921, there were in its hands “to the credit of Santo Bonfiglio, trustee for Rosa Bonfiglio, $4,177.53,” and on February 1, 1922, $1,186.76. The bond in suit recited that Rosa Bonfiglio, as principal, and the Fidelity and Deposit Company of Maryland, as surety, were bound in the sum of $2,000 to the New England Grape Company which had caused money and credits of Rosa Bonfiglio to the value of $2,000, to be attached by special precept in favor of the Grape Company against Santo Bonfiglio as principal defendant and the bank as alleged trustee, dated June 1, 1922, and returnable to the court on June 10, 1922, which Rosa desired to dissolve. The declaration alleged that the condition of the bond was that if Rosa Bonfiglio within thirty days after final judgment in the action “or after special judgment entered therein in accordance with the provisions of section twenty-four of chapter two hundred and thirty-five of the General Laws ...” pay “the amount for which the said trustee may be charged, not exceeding the value of the property in its hands, or so much thereof as will satisfy the amount that may be recovered by the said plaintiff” then the obligation should be void, otherwise it should remain in full force. Witnesses for both plaintiff and defendant testified that the condition so read when the bond was executed on July 18, and on July 19, 1922, when it was filed. On April 1,1927, the plaintiff filed a motion alleging that the creditor named in the trustee’s answer was the same person named as defendant in the writ and that the deposit “Santo Bonfiglio Trustee for Rosa Bonfiglio ” was in fact the deposit of the defendant; and praying that the trustee “be charged.” Hearing was had bn April 1, 1927, indorsement “allowed” was made on the motion, and the bank was charged as trustee. No amount was stated in the motion nor stated by the court in its order. Judgment was recovered against Santo Bonfiglio on April 15, 1927, in $2,000 damages and $33.60 costs. At the trial the plaintiff put in evidence the bond filed with the court, which disclosed that letters had been superimposed upon one another in such way that it was not clear whether the section of chapter 235 of the General Laws referred to was “twenty-four” or “twenty-five.” The defendant con [304] tended that the bond had been altered to read “twenty-five ” ; and, as evidence to show that originally the paper as filed read “twenty-four,” called an assistant clerk of the court, who testified that on May 12,1927, he made an attested copy of the bond then on file, and identified as that copy a paper shown him, which contained the words “twenty-four” at the place in question. This paper was excluded against the defendant’s exception. Testimony of a lawyer that in preparing the bond he had struck out “five” from an old form of bond given by him to his stenographer as a guide in her work and had inserted “four,” and that the bond as executed read “twenty-four” was also excluded. These rulings were erroneous. It was matter of fact for a jury to determine whether the word in the paper offered in evidence as the original bond, in fact, was “four” or “five”; and whether when so offered the paper differed from the paper in its original state. The testimony offered was not sought to be introduced to vary or contradict the language of the instrument and thus to affect its construction; but went to the issues whether the paper put in evidence was the bond executed and filed in the case, and whether the paper had been altered, and how it read originally. There was no evidence to show who made the change, if any change ever had been made. The defendants would not be affected by a change made by a third party with no interest, Chessman v. Whittemore, 23 Pick. 231, 233, Tulane University v. O’Connor, 192 Mass. 428; but, if they could show an alteration, the burden of proving the alteration to be immaterial would be upon the party relying upon the instrument, here the plaintiff.' We cannot properly say that, no prejudice to the defendant resulted from the exclusion of the evidence. Furthermore, it was for the jury to determine whether there had been a breach of the bond. The bond in suit was given to dissolve an attachment made on June 1, 1922. The evidence showed that in November of 1921 and February of 1922 the bank held property which perhaps belonged to Santo Bonfiglio; but it failed to show that on June 1,1922, the bank held property.of Santo attached by the later special precept, [305] and that it had been charged as trustee on account of such holding. The order of the court charging the defendant generally, but in no specific amount, did not go far enough to show that, as matter of law, there had been any charge based upon the attachment dissolved by the bond. It fell short, therefore, of making out conclusively that neglect to pay the judgment was a breach of the bond. Cunningham v. Hogan, 136 Mass. 407. See MacAusland v. Fuller, 229 Mass. 316, 319. Whether or not the bank was liable depended upon inferences of fact to be drawn from the evidence introduced, under proper instructions. We see no error in the refusal to direct a verdict for the defendant; but we think there was error in directing a verdict for the plaintiff. Exceptions sustained.