Title Guar. & Sur. Co. v. Fusco Const. Co.

• Decision Date: 18 June 1917
• Citation: 90 N.J.Law 630,101 A. 248
• Parties: TITLE GUARANTY & SURETY CO. v. FUSCO CONST. CO. et al.
• Court: New Jersey Supreme Court

101 A. 248

90 N.J.Law 630

TITLE GUARANTY & SURETY CO.

v. FUSCO CONST. CO. et al.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by the Title Guaranty & Surety-Company against the Fusco Construction Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Charles M. Mason, of Newark, for appellants. Colin & Cohn, of Paterson, for appellee.

MINTURN, J. The plaintiff, a foreign corporation, brought suit against defendants, the defendant company being a corporation of this state, to recover premiums due on three bonds given by the plaintiff, as surety for the Fusco Construction Company, to the town of Harrison, in the; state of New York, to ensure the completion of certain contracts entered into by the construction company with the town, for the construction of a sanitary sewer system therein.

The allegation of the complaint is that in consideration of the plaintiff's suretyship, the defendants agreed in writing with the plaintiff to pay in cash the annual premium upon each of said bonds, and to continue the payment of the same until the plaintiff should be discharged, according to law, from all liability upon the obligations. The agreement also contained a provision of indemnity, in virtue of which the plaintiff was to be saved harmless from any loss or liability by reason of its execution of the obligations, including disbursements and costs and counsel fees incurred in collecting the premiums due upon the bonds. The breach alleged was that the premiums remained unpaid for the years 1014 and 1915, maturing respectively on the 6th of December in each year. The answer of both defendants contained a general denial of the allegations of the complaint, and an averment that the contract in question was completed by the company prior to December 6, 1913.

The trial at the circuit resulted in a direction of a verdict for the plaintiff, and the appeal lies from that determination. The due execution of the bonds was not denied in the proof. It is contended that there was a variance between the allegation and the proof, in that two of the bonds were dated December 6th, and since the indemnity agreement was dated December 19th, the inference to be drawn was that the latter could not have been executed as quid pro quo for the former. No proof was tendered to support the contention, while the proof was ample and uncontradicted that the agreement of indemnity presented...