National Surety Co. v. Wilcox

SHAW, J.

In this action plaintiff, at the special instance and request and for and on behalf of Standard-Lumber & Wrecking Company, whose property was attached in a suit brought against it by the Pacific Lumber Company, executed a bond under and by virtue of which the property so attached was, as provided by law in such cases, released therefrom. Thereafter judgment was rendered in favor of the Pacific Lumber Company and against Standard Lumber

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Wrecking Company, defendant in said suit, for the sum of $769.82, which the plaintiff herein, as surety upon said bond, paid and, claiming the bond so given for the release of the property attached by the Pacific Lumber Company was made and executed by it in consideration of a written agreement of Wilcox and Johnston defendants herein, to indemnify it against loss due to its act in making the bond, brought this action to recover thereon.

Plaintiff appeals from a judgment rendered in favor of defendants based upon a finding that “it is not true that said contract of indemnity was the consideration and inducement, or consideration or inducement, upon which and for which, or upon which or for which, the plaintiff executed, signed, and delivered, or executed or signed or delivered the said bond or undertaking. ... It is true

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that said bond or undertaking so issued by the plaintiff in said action was issued upon the plaintiff’s own responsibility on application only of Standard Lumber & Wrecking Company, without any reference to, and without relying upon, the contract of indemnity attached to the plaintiff’s said complaint, marked ‘Exhibit A,’ and without any promise or agreement on the part of the defendants, or either of..them, to reimburse the plaintiff therefor.” These findings are attacked upon the ground that the evidence is insufficient to support them.

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It appears that the Standard Lumber & Wrecking Company had frequent occasion to call upon plaintiff for the execution of. bonds for and on its behalf, and for the purpose of protecting plaintiff from liability upon the bonds so issued to said company, defendants Wilcox and Johnston were in the habit of executing instruments in writing whereby they agreed to indemnify plaintiff for any loss sustained by reason of the making of such bonds for and on behalf of said company. Under these circumstances, a writing in the nature of a blanket agreement of indemnity, and signed by the Standard Lumber & Wrecking Company, and defendants W. W. Wilcox and Dan Johnston, was executed on January 30, 1912, which contained the following recital: “This agreement witnesseth: That, whereas, Standard Lumber & Wrecking Company, Inc., W. W. Wilcox and Dan Johnston (hereinafter called applicant), may from time to time hereafter request the National Surety Company, a corporation under the laws of the State of New York (hereinafter called the Company), to make and execute various and sundry bonds and undertakings; and, whereas, the Company, by making and executing such bonds and undertakings, may become liable to pay, and may pay, various and sundry sums and amounts of money under such bonds and undertakings. . . . Now, therefore, in consideration of the premises, we, the undersigned, hereby covenant with the company, its successors and assigns, in manner following—that is to say”: Followed by various and sundry provisions and covenants on the part of the signers of the agreement, among which was one to the effect that they would indemnify and hold the company, harmless from any demands, liabilities, expenses, and loss