Century Indem. Co. v. Bloom

• Decision Date: 22 November 1949
• Citation: 88 N.E.2d 906,325 Mass. 52
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: THE CENTURY INDEMNITY COMPANY v. HENRY B. BLOOM & others.

325 Mass. 52

88 N.E.2d 906

THE CENTURY INDEMNITY COMPANY v. HENRY B. BLOOM & others.

Supreme Judicial Court of Massachusetts, Suffolk.

November 22, 1949

October 6, 1949.

Present: QUA, C.

J., RONAN, WILKINS SPALDING, & COUNIHAN, JJ.

Contract, Of indemnity, Construction. Words, "Their."

Under a contract of indemnity with a surety company, made up on a blank form intended for general use and executed by several indemnitors in which it was recited that bonds might be "required by" . . . "the indemnitor(s), or any one or more of" them, "in connection with either their joint several or individual business," and which provided that the indemnitors should indemnify the surety company for all loss and expense incurred by it through becoming surety on such bonds, the surety company was entitled to recover from one of the indemnitors sums which it had been required to pay to the obligees of bonds executed by it as surety, and by another of the indemnitors and strangers to the contract of indemnity doing business together under a trade name, as principals.

CONTRACT. Writ in the Superior Court dated January 14, 1948. The action was heard by Kirk, J.

D. Gorfinkle, for the plaintiff, submitted a brief. J. H. Soble, for the defendant David Bloom.

RONAN, J. This is an action of contract to recover amounts paid by the plaintiff as surety upon two bonds, which, it alleges, the defendants were bound to pay by virtue of an indemnity contract which they executed in favor of the plaintiff. The action was discontinued against the defendant Muriel Cohen for want of service. The judge found for the plaintiff against the defendant Sylvia W. Bloom in the amount of $1,791.68, and against the defendant Henry B. Bloom in the amount of $2,539.47. He found for the remaining defendant, David Bloom. The plaintiff does not attack the findings in its favor but is apparently seeking to attach liability upon David Bloom, and brings the case here by exceptions saved to the denial of certain requests for rulings.

The first count of the declaration alleged that the defendants Henry B. Bloom and David Bloom, Louis Bloom, now deceased, and Leighton & La Pierre Co., a Massachusetts corporation, entered into a contract of indemnity, the various provisions of which are set forth; that Leighton & La Pierre Co. was dissolved and ceased to do business as a corporation; that thereafter Henry B. Bloom, Muriel Cohen, and Sylvia W. Bloom proceeded to carry on business as "a partnership" under the firm name and style of Leighton & La Pierre Co.; and that the plaintiff furnished to said partnership the two bonds upon which the plaintiff as surety was obliged to make the payments for which it seeks recovery in this action. The third count was alleged to be for the same cause of action set forth in the first count, but it omitted allegations that Leighton & La Pierre Co. was a corporation and that it had been dissolved. The second count alleged that the bonds in question were furnished to the "partnership" composed of Henry B. Bloom, Sylvia W Bloom, and Muriel Cohen.

There was evidence that at the time the contract of indemnity was executed on November 13, 1939, Leighton & La Pierre Co. was a corporation; that it ceased to do business on or about December 19, 1945; that the defendants Henry B. Bloom, Sylvia W. Bloom, his wife, and Muriel Cohen formed "a copartnership" doing business under the names of Leighton & La Pierre, Leighton & La Pierre Co., Leighton-La Pierre, and Dunhill Co.; that the plaintiff as surety gave a bond in the penal sum of $700 to a railroad on May 14, 1946, in which Leighton-La Pierre was named as principal; that it executed another on October 31, 1946, as surety, with Henry B. Bloom, Sylvia W. Bloom, and Muriel Cohen doing business as Leighton & La Pierre, Dunhill Co., and Leighton & La Pierre Co. as principals. This bond was in the penal sum of $3,000 and was given to the Commonwealth. The plaintiff was obliged to pay $700 to the railroad company and $1,677.07 to the Commonwealth.

On November 13 1939, Leighton & La Pierre Co., Louis Bloom, Henry B. Bloom, and David Bloom executed a "general contract of indemnity" on one of the blank forms furnished by the plaintiff in which they were designated as indemnitors. The preliminary or whereas clause of this contract recited that "certain bonds, undertakings and other writings obligatory in the nature of a bond" may be "required by, for, or on behalf of the indemnitor(s), or any one or more of the parties included in the designation indemnitor(s), in connection with either their joint, several or individual business." This clause was immediately followed by another reciting the consideration to be the execution by the plaintiff of bonds "to be given by, for, or on behalf of the indemnitor(s), or any one or more of the parties included in such designation." The indemnitors agreed to indemnify and hold harmless the plaintiff from all damages, loss and expenses by reason of having become surety on the said bonds. It was provided in the last clause of the contract that the word "indemnitor(s), or personal pronouns used to refer to said...