Edmund D. Cook, Inc. v. Commercial Cas. Ins. Co.
| Decision Date | 16 May 1936 |
| Citation | 190 A. 99 |
| Parties | EDMUND D. COOK, Inc. v. COMMERCIAL CASUALTY INS. CO. |
| Court | New Jersey Supreme Court |
Action at law by Edmund D. Cook, Incorporated, a New Jersey corporation, against the Commercial Casualty Insurance Company, a New Jersey corporation.
Judgment for the plaintiff.
Judgment affirmed 190 A. 102.
Charles DeF. Besore, Thomas Potter, and Hervey S. Moore, all of Trenton, for plaintiff.
William A. Moore and Howard K. Shaw, both of Trenton, for defendant.
This case was tried before the court without a jury upon stipulation by the parties that a trial by jury be waived and the matter heard and determined by the court.
The case was at issue on April 18, 1927, but the taking of testimony was not completed until February 25, 1936, and briefs were filed in April, 1936.
It is an action on a bond given by the defendant to secure the performance by one Gallena-Poole Co., Inc., of a contract made by that company with the plaintiff for the construction of certain roads and the performance of certain other work at Battle Park, Princeton township, N. J. The contract provided that "the said materials, work and labor to be of a value of $5,000.00 as provided in the proposal thereafter hereto annexed and made a part hereof" and the consideration as set out in the contract was the sum of $5,000 "payment to be made by the cancellation of the promissory note for $5,000.00 dated March 9, 1925, made and delivered by the party of the second part hereto to the party of the first part hereto." It can be seen that by the terms of that contract the plaintiff was obligated if and when the work was completed to discharge a certain indebtedness amounting to $5,000 and owing by said Gallena-Poole Co., Inc., to the plaintiff, which indebtedness was evidenced by a promissory note and which was offered in evidence as Exhibit P-3.
On the 9th day of March, 1925, the bond in suit was entered into between Gallena-Poole Co., Inc., as principal, Commercial Casualty Insurance Company as surety and Edmund D. Cook, Inc., its successors or assigns.
The evidence shows that Gallena-Poole Co., Inc., never began work under the contract, that it never performed the same, and that it has since become bankrupt and been discharged therefrom.
Plaintiff, after notice to the defendant, caused the work to be done at an expense to it of $4,228.62, and it is to recover these damages alleged to have been suffered by the plaintiff that this suit is brought.
The defendant interposed two affirmative defenses: (1) That because the Gallena-Poole Co., Inc., never began or completed performance of the contract and plaintiff never surrendered the note, the consideration of the contract to secure performance of which the bond was given failed; and (2) that subsequent to the making of the contract the parties thereto entered into a new agreement, by which the plaintiff accepted in full settlement and satisfaction of the note in question certain orders upon the Board of Chosen Freeholders of Mercer County and thereby relinquished all of its rights under the contract and the bond thereby became discharged. The orders hereinbefore mentioned were not paid.
The facts as presented at the trial do not bear out the contention of the defendant as contained in its second affirmative defense and I am not impressed by it. The proofs show no new agreement between Gallena-Poole Co., Inc., and Edmund D. Cook, Inc., which prejudiced the right of this defendant or extended the time of performance by Gallena-Poole Co., Inc., whereby the defendant surety would be released and discharged.
As to the defense of failure of consideration, the facts in this were proved, but the conclusion that by reason thereof the consideration of the contract failed and the bond was thereby discharged, cannot be sustained. The contract provides that the note shall be cancelled after the work is performed. What the evidence actually shows is a mere breach by Gallena-Poole Co., Inc., of its contract and what the defendant in effect says is that it should be discharged by reason of a breach of a contract which it guaranteed should not be...
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In re Technology for Energy, Corp.
...County v. United States Fidelity & Guaranty Co., supra; Fisher v. Fidelity & Deposit Co., supra; Edmund D. Cook, Inc. v. Commercial Cas. Ins. Co., 15 N.J.Misc. 256, 190 A. 99 (Sup.Ct.1936) aff'd per curiam 117 N.J.L. 440, 190 A. 102 (N.J.1937); Veneto v. McCloskey, 333 Mass. 95, 128 N.E.2d ......
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Edmund D. Cook, Inc. v. Commercial Cas. Ins. Co., 83.
...suffices to say that Judge Oliphant properly construed the condition of the bond in suit. And there was evidence of a breach. The judgment (190 A. 99) is accordingly For affirmance: The CHANCELLOR, the CHIEF JUSTICE, and Justices TRENCHARD, PARKER, CASE, BODINE, HEHER, and PERSKIE, and Judg......