Merrick & Webster v. Greely & Gale

10 Mo. 106 | Mo. | 1846

Scott, J.,

delivered the opinion of the Court.

Greely & Gale filed a complaint under the statute concerning boats and vessels, against the steamboat Mound City, for materials furnished. Merrick & Webster became the surities in the bond given by the agent ■ of the boat, conditioned to satisfy the amount which should be adjudged to be owing and due to the plaintiffs.

The statement of the cause of action filed at the commencement of the suit, averred that the materials were furnished on account of A. Osburn, who was described as Cia part owner and husband of said boat.” At a subsequent term, leave was obtained to amend the complaint of the plaintiffs, by striking out the words above, descriptive of the person at whose instance the materials were furnished, and inserting in lieu thereof, “ulgent of the ovmers of said boat.” On the trial there was a verdict and judgment for the plaintiffs against the boat, and judgment was also entered against the sureties. On account of the above amendment, and for want of notice of the proceedings, the sureties contended that they were discharged, and the Court having overruled a motion discharging them, they appealed to this Court.

We do not see how the amendment affected the securities. No new cause of action was introduced by it. The bill of particulars in the cause was not at all changed. Their liability to the plaintiffs was not in :any wise varied by it. Nor was any contract that might be existing between the securities, and those at whose instance they entered into it, affected by the amendment. The amendment was purely formal, not varying the recovery, and we are utterly at a loss to see how it injured the appellants.

The appellants had a right to make an amendment, and if it is made without injury to the securities, on what ground can they complain. The principles on which amendments in cases like the present are allowed, are clearly stated in the cases of Seely vs. Brown, 14 Pick. 177, and Ball vs. Claflin, 5 Pick. 303. These cases maintain that when no new cause of action is introduced by an amendment, and the liability of bail is not affected by it, it is always allowable.

There is nothing in the objection that the plaintiffs had no notice of the proceeding. The suit had been commenced when they entered into the bond; and binding themselves to pay the money which might be adjudged to the plaintiffs, they had all the notice that could be reasonably required; and under the circumstances the statute must have contemplated that they should take notice of the proceedings.

The other Judges concurring, the judgment will be affirmed.