Fid. & Deposit Co. of Maryland v. Cataldo

• Decision Date: 04 January 1929
• Citation: 265 Mass. 458,164 N.E. 379
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. CATALDO et al.

265 Mass. 458

164 N.E. 379

FIDELITY & DEPOSIT CO. OF MARYLAND

v.CATALDO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1929.

Exceptions from Superior Court, Suffolk County; H. P. Williams, Judge.

Action of contract by the Fidelity & Deposit Company of Maryland against Amato Cataldo and trustee. On defendant's exceptions to trial judge's denying defendant's motion for directed verdict and allowance of plaintiff's. Exceptions overruled.

Harry W. Conant and Duffy & Ganer, all of Boston, for plaintiffs.

Vincent Brogna, of Boston, for defendant.

PIERCE, J.

This action of contract was tried to a jury in the Superior Court. At the close of all the material evidence, which is set out in the bill of exceptions, the defendant Amato Cataldo duly requested a verdict be ordered for him and the plaintiff duly requested that a verdict be ordered for the plaintiff. The trial judge denied the defendant's motion and allowed the plaintiff's. The case is before us on the defendant's exceptions, duly taken, to the aforesaid rulings and directions.

The material facts disclosed by the documents introduced in evidence and by the testimony of the defendant Cataldo, who was the only witness called, are in substance as follows: Frank P. Robinson by a writ dated November 13, 1924, returnable to the Superior Court for the County of Middlesex on the first Monday of December, 1924, caused the goods and estate of one Albina Spina to be attached, and by special attachment caused the goods and estate of Nunzia Cataldo, as holder of real property belonging to said Albina Spina, to the value of $2,000 to be attached on mesne process in a civil action. On March 25, 1925, Albina Spina and Nunzia Cataldo, as principal, and the Fidelity & Deposit Company of Maryland, as surety, under their seals, executed and delivered to Frank P. Robinson a bond to dissolve the said attachments according to law. The defeasance clause of the bond reads: ‘Now therefore, if the above bounden Albina Spina and Nunzia Cataldo shall pay to the plaintiff in the said action the amount, if any, that he may recover therein, within thirty days after the final judgment in said action; and also shall pay to the plaintiff in said action, within thirty days after the entry of any special judgment in said action, in accordance with chapter 235 of the General Laws of the Commonwealth of Massachusetts, the sum, if any, for which said judgment shall be entered; then the above written obligation shall be null and void; otherwise to remain in full force and virtue.’

On April 8, 1925, the defendant Cataldo signed, sealed and delivered to the Fidelity & Deposit Company of Maryland an indemnity agreement. The part of the agreement which is material to the issue raised by the defendant's bill of exceptions reads: ‘Know all men by these presents, that whereas, at the special instance and request of Amato Cataldo * * * (hereinafter called Indemnitors), and upon the express condition that this instrument be executed, the Fidelity & Deposit Company of Maryland * * * has executed, or procured the execution of * * * the following bond * * * on behalf of Albina Spina and Nunzia Cataldo as principals; a bond payable to Frank P. Robinson * * * as obligee, in the penalty of two thousand dollars ($2,000.00), and dated * * * the 25th day of March, 1925; * * * copy * * * thereof being * * * hereto attached. Now therefore, in consideration of the premises and the sum of one dollar, the receipt of which is hereby acknowledged, the Indemnitors * * * do hereby covenant and agree * * * Second, to indemnify the Company from and against any and all liability, loss costs, damages, attorneys' fees and expenses, of whatever kind or nature, which the Company may sustain or incur by reason, or in consequence of executingsaid bond * * * as surety or cosurety, or procuring, upon its full indemnity, the execution thereof * * * Fourth, that liability hereunder shall extend to, and include, the full amount of any and all moneys paid by the surety * * * executing said bond * * * in the settlement or compromise of any claims, suits and judgments thereupon, in good...