Brin v. Mesite

It is evident that this peculiarly drafted complaint must be construed as one for breach of the bond. Its recitals and prayer both indicate that such was the plaintiff's conception of his cause of action, and the joinder as a defendant of Dunlap, who had no other connection with the matter in controversy than as surety upon the bond, can be neither explained nor justified upon any other theory. Were there room for doubt as to the understanding of plaintiff's counsel upon this point, it would be resolved by reference to his statement to the court, made at the opening of the trial, that the plaintiff was seeking recovery for breach of the bond, and to the form of the judgment, which was one against both defendants.

The action being upon the bond, it is apparent that there could be no recovery, by reason of its breach, of an amount in excess of that which had been secured by the lien dissolved. That lien secured the plaintiff's claim for material furnished and services rendered in the construction of the building. General Statutes, § 4135. It did not afford him security for his loss of profit or damage suffered by his being prevented from completing the work. The court mistakenly permitted recovery of this latter character, for which in a considerable amount the evidence furnished a substantial basis. Apparently the court, for the time being, lost sight of the fact that the action was one upon the bond, and accordingly failed to keep the plaintiff's recovery within the limits thereby necessitated.

Whether or not the instructions would have been correct had the action been one against Mesite alone for breach of the contract, we have no occasion to inquire.

There is error, the judgment is set aside and a new trial ordered.

In this opinion the other judges concurred.