Calamita v. De Ponte

• Decision Date: 30 July 1936
• Citation: 187 A. 129,122 Conn. 20
• Court: Connecticut Supreme Court
• Parties: CALAMITA et al. v. DE PONTE et al.

187 A. 129

122 Conn. 20

CALAMITA et al. v. DE PONTE et al.

Supreme Court of Errors of Connecticut.

July 30, 1936

Rehearing Denied Oct. 6, 1936.

Error from Superior Court, New Haven County; Ernest A. Inglis and Frank P. McEvoy, Judge.

Action by Philomena Calamita and others against Ralph De Ponte and others to recover upon an agreement of indemnity, brought to the Superior Court, where defendant Assuntino's plea in abatement was overruled, a demurrer to the complaint was overruled, and issues were tried to the jury. From a judgment for plaintiff, defendants appeal.

Error and new trial ordered.

Franklin Coeller, Raymond J. Devlin, and Louis Philip Hurley Jr., all of New Haven, for appellants.

Thomas R. FitzSimmons, of New Haven, for appellees.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

MALTBIE, Chief Justice.

This action is the aftermath of the case of State v. Pashall, 118 Conn. 645, 174 A. 175, in which the state secured judgment against the plaintiffs as sureties upon a bail bond for the appearance of Ralph Mele in court to answer a criminal charge, Mele having made default of appearance. In this action the plaintiffs alleged in their complaint that the defendants requested them to become sureties upon the bond, promising that, if they did so, the defendants " would fully indemnify the plaintiffs for the amount of such bond and any expenses in connection therewith to which the plaintiffs were subjected" in event that Mele failed to appear and answer the complaint; that the state had recovered judgment against the plaintiffs upon the bond, for $15,000 damages and costs which they had become obligated to pay; that they had been put to various expenses in defense of the action and in the effort to apprehend Mele; and that at the time the agreement was made the defendants had transferred certain real estate to them as collateral security for the promise, but that the properties were not of sufficient value to indemnify the plaintiffs.

One of the defendants filed a plea in abatement upon the ground that the writ had not been properly served upon her, but as this plea was necessarily determined upon facts not appearing of record, we cannot, in the absence of a finding, review the action of the trial court in overruling it.

One of the principal contentions of the defendants is that, as the plaintiffs had not, when the action was brought, paid to the state the amount due on the bond or suffered any pecuniary loss, the action was prematurely brought. As far as concerns the time when a cause of action arises, indemnity agreements fall broadly into two classes, those where the contract is to indemnify against liability and those where it is to indemnify against loss; in the first, the cause of action arises as soon as liability is incurred, but in the second it does not arise until the promisee has actually incurred a loss. Morehouse v. Employers' Liability Assurance Corporation, 119 Conn. 416, 425, 177 A. 568; 5 Elliott, Contracts, § 4011; 31 C.J. pp. 438, 439, §§ 33, 35. Agreements to indemnify against loss were before us in Brentnal v. Holmes, 1 Root, 291, 1 Am. Dec. 44, Monson v. Lawrence, 27 Conn. 579, 585, and Wolthausen v. Trimpert, 93 Conn. 260, 105 A. 687; and in all of those it was held that a cause of action did not arise until the promisee had suffered loss. The plaintiffs rest their claim that the defendants were liable without proof of loss upon the case of Bridgeport v. Aetna Indemnity Co., 91 Conn. 197, 99 A. 566, and the trial court seems to have regarded our decision in that case as determinative in the case now before us. That case is not, however, in point. The condition of the bond sued upon there was that, if the promisor in a contract to which it was collateral fully performed the terms of that contract and saved the city harmless, then the bond should be of no effect; but there the claimant was the obligee in the bond, and as between it and the indemnity company the latter was in effect a guarantor of the performance of the contract. The holding in that case that when the contract was broken a cause of action at once arose in behalf of the obligee in the bond (the city) is not determinative in this action, where the sureties on the bond are suing upon an agreement that they would be indemnified by the defendants who were in no way holden to the obligee in the bond, the state.

The defendants first raised their contention by a demurrer to the complaint. This the trial court overruled on the ground that under the allegations of the complaint an agreement might be proved which would fall within the class of cases where indemnity is given against liability, and in that ruling we could not find error. At the trial the court, disregarding the distinction between an agreement to indemnify against liability and one to indemnify against loss, charged the jury that to sustain the action it was not necessary that the plaintiffs had suffered any loss at the time it was brought but it was sufficient if their legal liability had become fixed. This would of course be true if the agreement was one for indemnity against liability; it would not be true if it was for indemnity against loss.

In their claims of proof at the trial, the plaintiffs state that they offered evidence to prove that the defendants agreed to quitclaim to them all their right, title, and interest in certain real estate to secure them against any loss which might be occasioned if Mele made default of appearance and, further, in case of such default, that the defendants would be liable to them for any costs or expenses which might arise out of the default. It would be difficult to construe such an agreement as other than one for indemnity against loss, and, if so construed, the charge of the trial court would not be sufficient to guide the jury in determining whether the defendants were liable to judgment. We must test the charge by the finding, and whether the evidence was such that the jury might have found an agreement which would be one to indemnify against liability we cannot consider upon the appeal from the judgment. If the evidence left the nature of the agreement in doubt, the trial court should have given appropriate instructions to enable the jury to determine the defendants' liability in this action according to the terms of the agreement they might find to have been made. Mills v. Roto Co., 104 Conn. 645, 648, 133 A. 913.

It is true that the defendants appealed also from the denial of a motion to set the verdict aside, and the evidence is brought before us on...