Robb v. Security Trust Co.

Citation121 F. 460
Decision Date09 March 1903
Docket Number26.
PartiesROBB v. SECURITY TRUST CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Robert H. McCarter, for plaintiff in error.

John F Harned, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

This is a writ of error to the Circuit Court of the United States for the District of New Jersey. The Security Trust Company, the defendant in error, brought an action in contract in that court, against Robb, the plaintiff in error. The action was founded on a bond of indemnity given by Robb to the Security Trust Company, to save it harmless, etc., in becoming surety in a property bond given in a replevin suit, brought in the Supreme Court of the state of New Jersey. The record discloses the following facts:

In the month of June, 1897, the Ft. Wayne Electric Company brought an action of replevin against the Franklin Electric Light Company, at Cape May, to recover goods sold by the plaintiff to the defendant, under a claim of title reserved by the contract in the vendor until full payment was made. Robb, the plaintiff in error, in behalf of the defendant in the replevin suit, procured the Security Trust Company, the defendant in error, to become a surety in a forthcoming property bond to the sheriff, by which the defendant in the replevin suit was allowed to retain possession of the goods replevied, pending the suit. The plaintiff in error, Robb indemnified the Security Trust Company against loss, by reason of becoming surety, as aforesaid, in and by an indemnifying bond. The action of replevin resulted in a judgment in favor of the plaintiff, based upon the plaintiff's ownership and right to possession of the property. Suit was then commenced against the Security Trust Company, as surety in the replevin bond, by the Ft. Wayne Electric Company. The Security Trust Company duly notified the plaintiff in error, Robb, to appear and defend the suit as its indemnitor. Pursuant to this notice, Robb appeared by his counsel, and conducted the litigation with the assistance of, but without expense to, the trust company. A protracted trial resulted in a verdict in favor or the plaintiff in replevin and against the Security Trust Company, and judgment was entered in the Supreme Court, upon said verdict, against the trust company, on the 22d day of January, 1901, for the sum of $14,621.88.

Under the law and practice of New Jersey, this judgment was subject to review by a writ of error, at any time within three years from its date. If, however, it was desired to prevent the issuing of an execution and recovery thereon, it was necessary to file, within 10 days from the date of judgment a bond with surety to prosecute the writ with effect. By the statutes of New Jersey, such bonds could be executed jointly with the surety by the plaintiff in error, or any substantial person for him. The uniform practice appears to have been, that the plaintiff in error executed the bond with the surety. The uniform practice appears to have been, that the plaintiff in error executed the bond with the surety. There is testimony tending to show that the secretary, or other executive officer, of the defendant in error-- the Security Company, who actively co-operated with the indemnitor at the trial, gave him to understand all through the litigation, as well as expressly promised, that in case of an adverse result in the suit against the Security Company, a writ of error would be sued out, to be prosecuted by and at the expense of the indemnitor in the Court of Errors and Appeals of the state of New Jersey. That pursuant to such understanding, upon the entry of the judgment in the court below, the indemnitor, at his own expense, sued out a writ of error in the Court of Errors and Appeals, in the name of the said Security Company, and proceeded to have drawn up a bail bond with a proper surety, to wit, the City Trust Company of Philadelphia, in order to obtain a supersedeas, as provided by law in that behalf. The testimony also tends to show that the president of the trust company designated the said City Trust Company as a surety satisfactory to him, and promised to complete the bail bond with that company as surety, so that it might be filed within the 10 days necessary to obtain a supersedeas. The testimony also tends to show that, in the interval between the entry of the judgment, on the 22d day of January and the 31st of that month, communications were had between the president of the Security Trust Company, the defendant in error, and the representative of the plaintiff in error, in which the information was given that arrangements had been made with the said City Trust Company to go on the bail bond as surety, and that this information was acquiesced in as in accordance with the general understanding between the parties. It is not disputed that $144 was paid by the plaintiff in error, Mr. Robb, to the said City Trust Company, as its charge for becoming surety in the supersedeas bond, and that Mr. Robb arranged also to indemnify the said company against loss. There is testimony tending to show that the counsel for the plaintiff in error, relying upon such an understanding with the defendant in error, presented a properly drawn bond, executed by the said City Trust Company, as surety, to the Security Trust Company, the defendant in error, on January 31st, and that not until that day was any notice received by the plaintiff in error, or his representatives or counsel, that there was any objection on the part of the Security Company to executing such a bond. It is in testimony that on that day, the secretary of the Security Company telegraphed from Camden, N.J., to the counsel of the plaintiff in error in Newark, in that state:-- 'We don't care to continue bond;' and that afterwards, when another representative of the plaintiff in error called at the office of the Security Company in Camden, the secretary of the company said:-- 'Our board of directors do not care to continue this litigation any further. It is doing us no good;' and that afterwards, a proposition for the deposit of $15,000, or additional collateral security, was made by the Security Company to the representative of the plaintiff in error. As this was in the afternoon of the last day when a bond could be executed for the obtaining of a supersedeas, it is contended by plaintiff in error that it was then too late to comply with such a request, even if it had been a reasonable or proper one, as it was necessary to file the bond the next day in Trenton, while the parties who were then transacting the business were in Philadelphia and Camden, N.J. Within two weeks, thereafter, the plaintiff in error was notified by the Security Trust Company that execution had been issued upon the judgment in the replevin suit, and that upon the demand of the sheriff, in whose hands the execution was, it had paid the same, and that it would look to him to be indemnified, according to the obligation of his bond. It appears also that the judgment at the suit of the Ft. Wayne Electric Company against the said Security Trust Company, was for the use of John J. Burleigh, a director of the Security Trust Company, and an offer by the plaintiff in error in the suit below, to show that other of the directors of the Security Trust Company were interested in the said judgment against that Company, was denied.

The writ of error, however, which was sued out by the attorney of the plaintiff in error, pursuant to the general authority given by the Security Trust Company, on the 23d of January, 1901, continued pending in the Court of Errors and Appeals of the state of New Jersey, notwithstanding the failure to file the supersedeas bond within the ten days prescribed by law. If the said writ of error had been prosecuted with effect, the judgment below of the said court would have been reversed and the Security Company would have been entitled to a writ of restitution.

On the 6th of April, however, the Security Company, by its attorney, notified the attorney of the plaintiff in error, that the said writ of error in the Court of Errors and Appeals of New Jersey was being prosecuted without authority from the Security Company, and that unless the amount of the judgment below was paid, or security sufficient to reimburse said Security Company were deposited, he, the said attorney for the Security Company, would move the said Court of Errors and Appeals for the dismissal of the writ, on the ground that the same was being prosecuted without authority. Thereupon, the attorney for the plaintiff in error here, who had sued out the writ in pursuance of his alleged understanding with the Security Company, and who had appeared in the litigation in the lower court at the request and with the co-operation of the said company, discontinued the said writ of error. In this, we think he was justified.

In the suit in the court below, the plaintiff, the defendant in error here, having proved the judgment against it as surety in the replevin bond, and the issuing of execution thereon and payment of the same by it, and the undertaking of the plaintiff in error, Mr. Robb, in his bond of indemnity to it, to indemnify and hold it harmless by reason of its said suretyship, demanded peremptory instructions from the court for a verdict in its favor, notwithstanding the testimony adduced by the defendant, the substance of which has been above recited. The plaintiff in error, the defendant below, also asked for peremptory instructions for a verdict in his favor. The learned judge of the court below granted the request of the plaintiff, the defendant in error here, and directed a verdict in his favor, for the sum of $14,621.88. The assignments of error relate to the propriety of the action...

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6 cases
  • Miller v. New York Oil Company
    • United States
    • United States State Supreme Court of Wyoming
    • 26 Enero 1926
    ...indemnitor; an indemnitor must be released from liability, if deprived of opportunity to obtain reversal of judgment for damages; Robb vs. Trust Co., 121 F. 460. M. Ryan for respondent. Where all necessary elements to warrant the findings and judgment are proven, plaintiff is entitled to re......
  • U.S. Fidelity & Guaranty Co. v. Martin
    • United States
    • Supreme Court of Oregon
    • 29 Junio 1915
    ...Cas. 883. In such a case the trial judge acts as a jury. The findings in this cause may be referred to as a verdict. Robb v. Security Trust Co., 121 F. 460, 464, 57 C. A. 576, was originally an action by the latter against the former as an indemnitor for the company having signed a replevin......
  • Wilson v. Hite's Ex'r
    • United States
    • Court of Appeals of Kentucky
    • 27 Mayo 1913
    ......American. Surety Co. v. Ballman (C. C.) 104 F. 634; Robb v. Security Trust Co., 121 F. 460, 57 C.C.A. 576;. Wheeler v. Sweet, 137 N.Y. 435, 33 N.E. 483. ......
  • Security Trust Co. v. Robb
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 9 Enero 1906
    ...DALLAS, and GRAY, Circuit Judges. DALLAS, Circuit Judge. This case was here in March, 1903, and the decision then made has been reported in 121 F. 460, where, in the syllabus, reporter has supplied a summary of the material facts, which for the present purpose sufficiently states them. It i......
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