American Sur. Co. of New York v. Venner

• Decision Date: 21 May 1903
• Parties: AMERICAN SURETY CO. OF NEW YORK v. VENNER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 329
67 N.E. 331

AMERICAN SURETY CO. OF NEW YORK
v.
VENNER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1903.

Report from Superior Court, Suffolk County; Robert R. Bishop, Judge.

Action by the American Surety Company of New York against Clarence H. Venner and others. Case reported to the Supreme Judicial Court. Judgment for plaintiff.

Hutchins & [183 Mass. 329]Wheeler, for plaintiff.

Anson M. Lyman, for defendants.

KNOWLTON, C. J.

In a case pending in the Supreme Court of the state of New York, an attachment was made upon property of the defendant Venner, and the present plaintiff, at his request, agreed with the plaintiff in that suit to pay the amount [183 Mass. 330]of any judgment that might be ‘recovered in the action against the defendant, not exceeding the sum of five thousand dollars, with interest,’ for the purpose of discharging the attachment. At the same time these defendants entered into a contract to indemnify and save harmless the present plaintiff from its liability on the agreement to pay the judgment. In the original case, judgment was recovered in the sum of $8,041.33, and the plaintiff therein demanded payment from the American Surety Company under the agreement. There was a dispute between the plaintiff in the original suit and the defendants in this suit as to the amount for which the present plaintiff was liable under the agreement; the plaintiff in the original suit contending that the agreement included interest on $5,000 from its date, which was February 28, 1889, and the defendants in this suit contending that interest was to be added only from the date of the judgment, which was November 21, 1894.

The language of the contract of indemunity, in the material part, is as follows: ‘That said parties of the first part [the present defendants] shall and will at all times indemnify and keep indemnified and save harmless the said company [the present plaintiff] from and against all loss, damages, costs, charges, counsel fees and expenses whatsoever, which said company shall or may for any cause, at any time, sustain or incur by reason or in consequence of said company having executed said instrument, and do further covenant and agree to pay to said company and its representatives, all damages for which said company or its representatives shall become responsible upon the said undertaking,

[67 N.E. 332]

before said company or its representatives shall be compelled to pay the same, any sum so paid, however, to be...