274 Mass. 65 | Mass. | 1931
The defendants are sureties upon a bond given to dissolve an attachment made in an action brought by Joseph Aronow against one Hyman Doodlesack, the principal in the bond. They contend that they were discharged of liability when, without notice to them, certain amendments to the declaration filed in the suit of Aronow v. Doodlesack were made and allowed.
G. L. c. 231, § 51, provides that the court “at any time before final judgment, except as otherwise provided, . . . may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for
In the case before us the causes of action for which the two counts of the declaration sought recovery were the failure to pay the balance-due for plumbing and heating materials supplied for and labor upon certain buildings; and for labor and materials for remodelling the heating and plumbing equipment in certain other buildings. No contention is made that the second count has been affected by amendment. At the trial a change in statement was thought desirable from a demand for a balance of $1,500 due under a written contract, modified in certain respects by agreement, and alleged to be fully performed by the plaintiff, to a demand on quantum meruit for work and materials furnished in rendering the identical service. Further it appeared that a note for $800 had been given on account of the $1,500. An amendment to the first count was made giving credit for that amount on the balance, and
Lack of notice of the allowance of the amendments imposed no hardship upon the sureties. Their initial liability was not affected to their detriment by the amendments.
Exceptions overruled.