American Bonding Co. of Baltimore v. Alcatraz Const. Co.
| Decision Date | 13 January 1913 |
| Docket Number | 76. |
| Citation | 202 F. 483 |
| Parties | AMERICAN BONDING CO. OF BALTIMORE v. ALCATRAZ CONST. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Wilder Ewen & Patterson, of New York City (J. Ewen, of New York City, of counsel), for plaintiff in error.
Kellogg & Rose, of New York City, for defendant in error.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
NOYES Circuit Judge (after stating the facts as above).
The trial court excluded the plaintiff's proof as to the first cause of action because it held that the indemnity agreement sued upon was so uncertain as to be invalid. The agreement was duly dated and executed and was attached to a bond application. The agreement itself is full and complete except that the amount of the premium to be paid is not filled in. It refers to the 'bond herein applied for.' The application form, however, contains many unfilled blanks and it cannot be said that any particular bond is described. But the application is for bonds. The subject matter of the contracts which they are to cover relates to 'asphalt pavements and guaranteeing the same ' The defendant's place of incorporation is shown and its officers authorized to sign contracts are designated. A statement of the defendant's assets and liabilities also appears and the experience of its management is stated. All the information necessary to enable the plaintiff to determine intelligently whether to act as surety appears except the amount of the bonds desired. It seems clear that the application was thus made, indefinite in amount, to cover any bonds which the plaintiff might thereafter write for the defendant. That it was so accepted by the plaintiff is apparent, for the bond in question was issued about three months after this application and it does not appear that any new one was made.
A principal is bound to indemnify his surety against loss without any express agreement and the indemnity agreement in this case adds little to the common law obligation, except in so far as relates to the establishment of liability. An agreement of this nature is one which a surety company would naturally expect to receive and which a contracting company would naturally expect to give. Such an agreement requires only general language. One might well be drawn to cover any bonds which a surety company should give for a contractor. We think that it was altogether too narrow a ruling to reject the agreement in question as void...
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