McManus v. Donohoe , 175 Mass. 308 ( 1900 )

Morton, J.

As we construe the amended declaration, to the allowance of which no exception or objection appears to have been taken, it contained counts on both bonds; and though the defendant may have supposed that bond A was the only one in suit, the legal effect of the declaration was otherwise. There is nothing to show that the defendant was misled at the trial by anything that the plaintiff said or did, even supposing that if he had been he could avail of it here for the first time. The pend-ency of the previous action was pleadable only in abatement, (Mattel v. Conant, 156 Mass. 418,) and not having been so pleaded, there was no error on the part of the court in refusing to require the plaintiff to elect which bond he would rely on, especially in view of the plaintiff’s statement that he would consent to judgment for the defendant for costs in the previous action.

We see no ground on which the plaintiff’s right to recover could be limited to one bond if he proved breaches of both. Morse v. Hodsdon, 5 Mass. 314, 317. The amount of the damages is another matter.

At the trial evidence was introduced without objection (whether by the plaintiff or the defendant does not appear) tending to contradict the returns on the writ of attachment and writs of replevin and to show that each bond related to a different replevin writ from that indicated by the return thereon. The defendant asked the court to rule at the close of all the evidence that the plaintiff had failed prove a breach of the bonds because he was unable to show except by testimony varying the returns to which replevin writ each bond related. He also asked the court to instruct the jury that unless it appeared affirmatively from the returns on the writs of replevin and attachment “ independent of extraneous evidence, to which particular one of the two replevin writs each of the two bonds relate ” the plaintiff could not recover. The court refused, and we think rightly, to give the ruling and instruction asked for.

Both bonds were declared on, and the parties to both were the same. There was evidence tending to show that each bond was intended to apply to one particular writ, and that there had been a breach of each bond. Even if the jury had been unable to determine the precise relation of the bonds to the writs, that fact would have constituted no valid objection to a recovery by the plaintiff since the defendant could not have been harmed by their inability to do so. But the returns themselves afforded evidence tending to show which bond applied to each writ and were before the jury. The ruling asked for assumed that the plaintiff was unable to show the relation except by testimony contradicting the returns and was objectionable, therefore, on that ground also.

As to the instruction requested it is enough to say that if the returns on the replevin writs did not show to which writ each bond applied it was open to the plaintiff to show what the fact was. Hovey v. Lovell, 9 Pick. 68. Townsend v. Newell, 14 Pick. 332. Commonwealth v. McCue, 121 Mass. 358. Gravity v. Giyie, 130 Mass. 184. There is no rule of law which requires that it should have affirmatively appeared in the returns to which writ each of the bonds related. It was sufficient if it appeared that a bond had been taken in connection with each writ as required by statute. Exceptions overruled.