Werlin v. Equitable Surety Co.

227 Mass. 157 | Mass. | 1917

De Courcy, J.

By the express language of the bond in suit the Equitable Surety Company became bound “unto New Boston Biscuit Company, a corporation of Malden, Massachusetts, (hereinafter called the 'Obligee’), in the sum of Two thousand (2000) dollars.” And one of the express conditions precedent to the right of recovery was “Fourth: That no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the Obligee herein named.” In the application for the bond, the requirement “Give exact title of firm, organization or individual to whom bond is given” was answered “New Boston Biscuit Company, a corporation of Malden, Massachusetts.” The amended declaration alleged that “the defendant executed and delivered to the plaintiff, [Jacob Werlin] who was doing business under the name of the New Boston Biscuit Company, a corporation of Malden, Massachusetts, and who in fact is the obligee named ...” the bond in question.

' As matter of construction there is no uncertainty or ambiguity as to who is the obligee named in this bond. The defendant contracted with the New Boston Biscuit Company, a corporation. Plainly this plaintiff could not sue as obligee if the corporation was an existing one. Flynn v. North American Life Ins. Co. 115 Mass. 449. Penn Match Co. v. Hapgood, 141 Mass. 145. Mathews Slate Co. v. Sweeney, 219 Mass. 285. Frank v. Millen, 226 Mass. 71. Jordan Marsh Co. v. Beals, 201 Mass. 163. According to the testimony of the plaintiff there was no such corporation as the New Boston Biscuit Company in existence. In connection with this fact, however, the following facts must be taken into consideration: The defendant’s agent, Byrne, who executed the bond in suit, testified that he believed in behalf of the defendant at the time of the execution and delivery of the bond, that the surety company was making a contract with a corporation duly organized and existing under the laws of the State of Massachusetts, and not with the plaintiff individually; and that had he been informed that the New Boston Biscuit Company as a corporation did not exist, but that J. Werlin personally was the proprietor of the business, and that he was dealing with the plaintiff as an individual, he would not have executed the bond in behalf of the defendant, at least not without further investigation; and he stated reasons why it was more desirable for a surety company to make contracts with corporations. This testimony was not rebutted, and was admitted rightly. Blaney v. Rogers, 174 Mass. 277. Further, although the bond was handed to the plaintiff in October, 1913, in the office of Mr. Byrne and remained in his possession until he gave it to his attorney, he never notified the defendant of any mistake in the obligee named or sought to have such mistake corrected. It further appears that in the Omaha Machine Works contract and in the letters to the defendant written by the plaintiff’s counsel, the contracting party is referred to always as the New Boston Biscuit Company and not as J. Werlin; and Byrne testified that until after this action was brought he never was informed that the plaintiff claimed to be the actual obligee named in the bond. In these circumstances it does not appear that there was any contract between the individual plaintiff and the defendant. Sanders v. Filley, 12 Pick. 554. See Boston Ice Co. v. Potter, 123 Mass. 28, 30; Stevenson v. Donnelly, 221 Mass. 161, 165. Indeed it is difficult to see why the plaintiff is not estopped as against this defendant from now asserting that the New Boston Biscuit Company was not an existing corporation. O. Sheldon Co. v. Cooke, 177 Mass. 441, 443. Nickerson v. Massachusetts Title Ins. Co. 178 Mass. 308, 311. Bigelow on Estoppel, (6th ed.) 495. It does not avail the plaintiff that under the answer which the jury gave to the first issue it is settled that Sharp, acting for the Omaha Machine Works, believed that he was contracting with the plaintiff, and intended so to contract. Sharp’s knowledge cannot be imputed to this defendant, on the evidence disclosed.

There was no evidence that Jacob Werlin carried on business under the trade name of the New Boston Biscuit Company, a corporation. See Crompton v. Williams, 216 Mass. 184; William Gilligan Co. v. Casey, 205 Mass. 26, 31; Kennedy v. Hub Manuf. Co. 221 Mass. 136. We assume it could be found that the business in ice cream cones carried on in the name of the “New Boston Biscuit Company” for which his father Samuel Werlinsky had filed a certificate as owner under St. 1907, c. 539, was in fact owned by the plaintiff. But the word “corporation” was not used in that trade name. It may be added that the insertion “a corporation of Malden, Massachusetts” cannot be regarded as a mere clerical error on this record. Hewes v. Cooper, 115 Mass. 42.

The judge rightly ruled in effect that in this common law action on the bond the defendant was liable only to the obligee therein named and not to this individual plaintiff. It is not necessary to consider whether he was correct in ruling that the plaintiff could not recover for the further reason that he did not file a businescertificate with the city clerk of Malden under St. 1907, c. 539, as amended by St. 1908, c. 316. See National Fertilizer Co. v. Fall River Five Cents Savings Bank, 196 Mass. 458. Under the terms of the report the entry must be

Judgment for the defendant.