DISSENTING OPINION
By BARNES, J.It is with regret that I find myself unable to agree with my associates in the determination of the above entitled cause, and it. seems appropriate that reasons therefor be stated.
It seems to me that the proffered answer to which demurrer was sustained and thereafter final judgment entered very clearly raises the issue as to whether or not .the bond.signed by plaintiff in error could be extended to cover an obligation not in contemplation of the parties at the time the bond was signed.
Previous to the execution of the bond Pierce had commenced an action against a corporation; had made application for the appointment of a receiver and on his application a receiver was appointed to take charge of the assets for the benefit of the creditors.
An application was filed to lift the receivership. Pierce objected to this request. The trial court granted the motion on condition that the company furnish a bond in the sum of $20,000.00 for the benefit of Pierce to secure any judgment which Pierce might recover in his action then pending.
Pierce did not recover at all on the cause of action then stated but thereafter and after hearing before a Master Commissioner and determination that Pierce was not entitled to recover, the court permitted amendment to the petition to include other services-than those sued for, and then made a finding in favor of Pierce on this new claim. The trial court was warranted in making the amendment to the pelading because of the answer of the defendant asking for an accounting and the wide latitude taken by the parties in the introduction of testimony. Of course, the trial court in the -interest of avoiding further litigation would go to great lengths in permitting amendments to pleadings so as to determine, once and for all, the controversies between the parties. However, it must be remembered that the bondsman was not a party to that litigation. By no stretch of the imagination should the bondsman be held to contemplate a liability unheard of at the time of the execution of the bond. The language of the bond itself very clearly discloses what was in contemplation of the parties.
It is my conclusion that the court was in error in entering final judgment.