Furness v. Read

Robinson, J., delivered the opinion of the Court. The facts in this case are simply these — An attachment was issued at the instance of Thomas Eurness, Christopher Furness and William Gray, trading as Thomas Furness & Co., against the property of David W. R. Read, a nonresident, to recover freight claimed to be due them as owners of the steamship Boston City, on a cargo of iron ore, from Benisaf, Africa, to Baltimore. Read, the defendant, gave bond as required by the Code, with George P. Cronise and Daniel Malone as sureties, and the attachment was dissolved. At the trial of the short note case, on motion of the appellants, plaintiffs below, and against the objection of Read, the defendant, sixteen other persons, part-owners of the steamer trading together as such in partnership, and employing the firm name of Furness & Go. in charter parties, were made co-plaintiffs; and upon issues joined in the ca'se as thus amended, judgment was recovered against Read for $3,601.10. This suit is brought on the attachment bond, the breach assigned being the non-payment of the judgment thus recovered ; and the question is whether the sureties on the bond are liable for the payment of this judgment? No principle is better settled, than that a surety on a statutory bond, has a right to stand on the very terms of his contract, and his liability will not be extended beyond the fair import of the words used. His liability is one [3] not to be extended by implication, nor will it be inferred that he has agreed to do more than that which is fairly expressed in the bond: “To the extent, and in the manner, and under the circumstances pointed out in his contract, he will be held bound, but no further.” What then are the terms, and the circumstances under which this bond was executed? The bond on its face recites, that whereas Thomas Eurness, Christopher Eurness and William Gray, trading under the firm name of Thomas Furness & Co., had sued out an attachment against the property of Read, and whereas the defendant was desirous to dissolve said attachment, on giving bond with security as required by law, “Row the condition of the above obligation is such, that if the said defendant shall satisfy any judgment that shall be recovered in said case against him, then the said obligation shall be void.” The obligation was to pay any judgment that might be rendered in a suit brought by Thomas Furness, Christopher'Furness and William Cray, trading as Thomas Furness & Co., plaintiffs, against David W. R. Read. The judgment for the non-payment of which this suit is brought, is not one rendered in favor of the original plaintiffs, Thomas Eurness & Co., the attaching creditors, but one rendered under an amended state of the ple.adings, by which all the part-owners of the ship are made plaintiffs, all of whom had an interest in the freight, to recover which the attachment was issued. As the suit was originally brought, the plaintiffs, Thomas Eurness & Co., could not have recovered at all, because it is well settled, that where the contract is joint, either by agreement or by implication, as where the part-owners are general partners or quasi partners in the particular adventure, they must sue together. Parsons on Shipping and Admiralty, 117, (note); Abbott on Shipping, 115. Rot only were new parties made plaintiffs, but the nature and character of the cause of action was in itself changed. It was no longer [4] a suit to recover freight due to Eurness & Co., hut to recover freight due to all the part-owners of the ship, and to which each was entitled to an interest. Besides this the amendment affected' the defences of Read himself, because if he had a set-off against Eurness & Co., the original plaintiffs, he could not plead it against the part-owners of the ship. But the appellants it was argued, had the right to amend the titling, by making new parties plaintiffs, and the contract on the part of the sureties, must be construed therefore as referring to any judgment that might he rendered in the case, as thus amended. No one questions their right to amend by making all the part-owners of the ship plaintiffs, or even to amend the action itself from one form to another. This right is expressly conferred by the Code. But although this may he done as between the parlies to the suit, such amendment cannot operate to alter, change or enlarge the liability of the sureties on the attachment bond. They have the right to stand on the terms of their contract, and when they have agreed to become responsible for any judgment that may he recovered in a suit by Furness & Co., on a cause of action claimed to he due to them as a firm, to insist that their ágreement does not embrace a judgment recovered in the suit as amended, by which sixteen other persons are made plaintiffs, -and the cause of action itself changed from a claim due the original plaintiffs as & partnership, to one due to all the part-owners of the ship. Such they have a right to say was not their agreement. The judgment thus recovered is not one, for the payment of which they agreed to become responsible. A number of cases were cited, in which the question of the liability of sureties on attachment bonds has been considered by Courts in other States. All these cases recognize and adopt the general principles stated in a former part of this opinion; and the inconsistency, if any [5] there be in the decisions, arises from the application of these principles to the statutory provisions of the several States, and the ever-varying circumstances of each particular case. Leonard vs. Speidel, 104 Mass., 356; Christal vs. Kelly, 88 N. Y., 286; Poole vs. Dyer, et al., 123 Mass., 363; Campbell vs. Brown, 121 Mass., 516; Sanderson vs. Stevens, 116 Mass., 133; Sutro, et al. vs. Bigelow, et al., 31 Wisconsin, 521; Fullerton vs. Campbell, 25 Penna., 346; Andre vs. Fitzhugh, et al., 18 Michigan, 99; Quillin vs. Arnold, 12 Nevada, 238; Jaycox vs. Chapman, 10 Benedict, 517; Richards vs. Storer, 114 Mass., 101. (Decided 19th December, 1884.) We shall not extend this opinion by a review of these cases. It is sufficient to say, that none of them are inconsistent with the conclusion we have reached in this case, or the grounds on which it is based. We rest our decision on the ground, that the amendment made by the appellants, not only made new and different parties plaintiffs, but changed the nature and character of the claim itself, and thereby deprived the defendant of the benefit of defences which he otherwise might have made. Under such circumstances, the sureties on the attachment bond cannot be held liable for a judgment not within the terms of their contract, and for the payment of which they never agreed to be responsible. Judgment affirmed. Bryan, J., dissented.