Doane v. Eldridge , 82 Mass. 254 ( 1860 )

Metcalf, J.

The alteration of the bond, after it was executed by the defendants, and without their consent, discharged them from all liability under it. It does not now truly represent the obligation into which they entered. That obligation was, that Jonathan Eldridge should act faithfully as collector of a tax of $ 2572.82, which had been already assessed. By the alteration of the bond, the obligation which it purported to impose on the defendants was, that the said Eldridge should act faithfully as collector of a tax of $ 2490.01, which was assessed after the bond was executed. This obligation they never consented to incur.

Suppose the bond had not been altered, or that it should now be regarded, in law, as if not altered, yet the defendants would not be liable under it; for there has been no breach of its condition. Indeed, it is only in its altered state that the plaintiff seeks to enforce it, by showing that its condition has been broken.

On the ground that the bond has been materially altered, without the defendants’ consent, and the obligee now seeks to charge the obligors for breach of a contract into which they never entered — without expressing an opinion upon any other point raised in the defence — there must be

Judgment for the defendants.