30 F.2d 610 (2nd Cir. 1929), 130, Fidelity & Deposit Co. of Maryland v. Burden

Docket Nº:130, 131.
Citation:30 F.2d 610
Opinion Judge:AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
Party Name:FIDELITY & DEPOSIT CO. OF MARYLAND v. BURDEN (two cases).
Attorney:Charles S. Aronstam, of New York City, for plaintiff in error. Thomas E. White, of New York City, for defendant in error.
Judge Panel:L. Hand, Circuit Judge, dissenting. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge (dissenting).
Case Date:February 04, 1929
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 610

30 F.2d 610 (2nd Cir. 1929)

FIDELITY & DEPOSIT CO. OF MARYLAND

v.

BURDEN (two cases).

Nos. 130, 131.

United States Court of Appeals, Second Circuit.

February 4, 1929

Page 611

         L. Hand, Circuit Judge, dissenting.

         In Error to the District Court of the United States for the Southern District of New York.

         Actions by the Fidelity & Deposit Company of Maryland, surety on two supersedeas bonds, to recover on the indemnity agreement executed by I. Townsend Burden. Judgments were rendered for the Surety Company, and the defendant brings error. Reversed.

         These litigations arose as the result of actions by Frank A. Thompson and Thomas W. Robertson against I. Townsend Burden, Claude W. Jester, George H. Hull, Jr., Stuart L. Craig, James L. Putnam, Richard S. Tobin, Charles E. Miller, and Navarro Securities Company, in the Southern District of New York, to recover from those defendants the reasonable value of certain professional services alleged to have been performed by the respective plaintiffs. The defendants in these actions appeared by separate counsel, to wit: I. Townsend Burden and James L. Putnam, by Chase Mellen; Claude W. Jester and Navarro Securities Company, by Greene & Hurd; Richard S. Tobin, by Jay & Candler; George H. Hull, Jr., by Harrison, Elliott & Byrd; Stuart L. Craig, by Spencer, Ordway & Wierum; and Charles E. Miller, by J. W. Davern.

         As a result of the trial, judgment was rendered against I. Townsend Burden, James L. Putnam, George H. Hull, Jr., Claude W. Jester, Navarro Securities Company, and Richard S. Tobin, for $8,720.63 in the action by Thompson, and for $6,655.56 in the action by Robertson. Appeals were taken from these judgments by Burden and Putnam, and also by Jester and Navarro Securities Company and by Tobin. Burden and Putnam were represented on the appeals by Chase Mellen; Jester and Navarro Securities Company, by Greene & Hurd; and Tobin, by Jay & Candler. The judgments were reversed by this court as to Messrs. Burden, Putnam, and Tobin on the ground that they had not authorized or ratified the employment of either of the plaintiffs, and were affirmed as to Jester and Navarro Securities Company on the ground that proof of employment by them was sufficient. The opinion is reported sub nomine Burden v. Robertson (C.C.A.) 7 F.2d 266.

         In order to stay execution upon the judgments, Burden made applications in writing to the Fidelity & Deposit Company of Maryland for supersedeas bonds. The applications described the bond desired in the Thompson case as 'supersedeas bond in U.S. Dist Ct. So. Dist. of N.Y., Burden et al., plffs. in error, v. Frank A. Thompson, deft. in error,' and in the Robertson case as 'supersedeas bond in U.S. Dist. Ct. So. Dist. of N.Y., Burden et al., plffs. in error, v. Thomas W. Robertson, deft. in error. ' Each application was signed by Burden, who himself filled in the blanks with his name, residence, business address, occupation, and references, and contained a clause whereby he agreed 'to indemnify the company against all loss, liability, costs, damages, attorney's fees, and expenses whatever, which the company may sustain or incur by reason of executing said bond. * * * '

         The defendant Burden is not shown to have had any interest in staying execution for the other defendants. His attorney, Chase Mellen, suggested the Fidelity & Deposit Company of Maryland as a good company to furnish the supersedeas...

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