Burlington County Ry. Co. v. N.J. Rapid Transit Co.

• Decision Date: 14 June 1909
• Parties: BURLINGTON COUNTY RY. CO. v. NEW JERSEY RAPID TRANSIT CO.
• Court: New Jersey Supreme Court

73 A. 504

77 N.J.L. 737

BURLINGTON COUNTY RY. CO.

v. NEW JERSEY RAPID TRANSIT CO.

Court of Errors and Appeals of New Jersey.

June 14, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Burlington County Railway Company against the New Jersey Rapid Transit Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Carrow & Kraft, for plaintiff in error. Grey & Archer, for defendant in error.

BERGEN, J. The People's Traction Company, having obtained certain ordinances and grants for permission to construct trolley railways in the counties of Cape May and Cumberland, in this state, sold them to the defendant, and in part consideration was given a bond, which was subsequently assigned to the plaintiff. The sufficiency of such assignment with the right of the plaintiff to enforce its conditions is not questioned. After the delivery of the bond, suits were brought against the plaintiff by persons who had rendered services to the People's Traction Company in procuring the consents, permissions, and ordinances which that company had sold to the defendant. These suits were unsuccessfully defended, and the plaintiff compelled to pay the claims sued for, in which defense counsel fees to a moderate amount were expended. The present action was instituted on the bond of the defendant to recover the amounts paid for such services and counsel fees. It was admitted that the services relating to the consents and ordinances were performed before the execution of the bond and the transfer of the consents and ordinances to the defendant.

At the close of the plaintiff's case, the trial court directed a verdict for defendant, which order is the error assigned in support of this writ. The bond upon which plaintiff's action is based, after reciting that certain "locations of rights of way and proposed new lines of railway and ordinances" had been taken out in the name of the People's Traction Company, contained a condition that, if the defendant should indemnify the obligee "against all and every loss or claim through or by reason of any unpaid bills, charges, expenses or claims of any character emanating from or arising under or in connection with or by reason of said ordinances, grants, locations, permissions, consents or permits, at any time hereafter," then the obligation was to be void. The present controversy is confined to the effect to be given to the words "at any time hereafter." The claim of the plaintiff is that these words...