Fidelity & Cas. Co. of New York v. Raborn
Citation | 234 Ala. 31,173 So. 402 |
Decision Date | 25 March 1937 |
Docket Number | 1 Div. 958 |
Parties | FIDELITY & CASUALTY CO. OF NEW YORK v. RABORN. |
Court | Supreme Court of Alabama |
Certiorari to Court of Appeals.
Petition of William Raborn for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Fidelity & Casualty Company of New York v William Raborn, 173 So. 399.
Writ denied.
In action on bond indemnifying surety on warehousemen's bond, plea alleging that there was no "valid consideration" for the agreement held demurrable.
The complaint claims damages for the breach of the condition of a bond or contract of indemnity made by defendant on November 28, 1932, payable to plaintiff in a sum not exceeding $2,500 with the condition that plaintiff became surety for J.C Campbell and W.J. McCowan, doing business as the Consolidated Warehouse, of Mobile, Ala., and wherein the defendant agreed "To indemnify the plaintiff against any and all claims, demands, losses, damages, costs, charges, counsel fees, expenses, suits, orders, judgments, and adjudications, whatsoever, that the Company shall or may for any cause at any time sustain or incur by reason of or in consequence of the said bond or any renewal thereof or any new bond issued in continuation thereof or as a substitute therefor; and the Indemnitor further covenants and agrees to place the Company in possession of funds whenever necessary for the Company's protection against such claims, demands, losses, damages, costs, charges, counsel fees, expenses, suits, orders, judgments and adjudications whatsoever; and to pay the Company, before the Company shall be compelled to pay the same, all damages, losses, costs, charges, counsel fees, and expenses for which the Company shall become liable by reason of, or in consequence of, the said bond or renewal thereof or any new bond issued in continuation thereof or as a substitute therefor."
It is alleged that the condition of the said bond or contract of indemnity has been broken by the defendant in this: "That the defendant has failed or refused to pay to plaintiff those certain sums of money the plaintiff was forced to pay Wm. Henderson Company in its suit against the plaintiff as surety on the bond of J.C. Campbell and W.J. McCowan, doing business as the Consolidated Warehouse as well as the costs of court in the litigation thereof, and attorney's fee incurred in the defense of said suit by the plaintiff, as well as the additional counsel fee it has incurred in this cause, in the total amount of $900, all of which the defendant was in duty bound to pay under the terms and conditions of the aforesaid bond or contract of indemnity and which, as alleged he has failed or refused to do."
Objections raised by the demurrer were, in effect, that the complaint does not set out sufficient parts of the agreement from which the court can determine what the condition is; that the condition as quoted in the complaint is that defendant agreed to indemnify plaintiff against losses that plaintiff might sustain or incur by reason of "or in consequence of said bond or any renewal thereof or any new bond issued in continuation thereof or as a substitute therefor," and there is nothing in the complaint showing what kind of bond is referred to or what its provisions were; that the complaint neither set out the bond referred to nor alleged the substance of its provisions.
Defendant's pleas set up as a defense to the suit that defendant notified plaintiff through its agent at Mobile that said Campbell and Cowan, doing business as Consolidated Warehouse, had been guilty of acts of dishonesty, that defendant was no longer willing to indemnify plaintiff against loss on account of said bond, and notified plaintiff to withdraw and cancel said bond, and that plaintiff failed, as it could have done, to cancel bond and avoid the losses, which occurred subsequent to such notice given by defendant.
Smith & Johnston, of Mobile, for petitioner.
Gordon, Edington & Leigh, of Mobile, opposed.
The questions presented are by way of certiorari to the Court of Appeals.
The petition contains, among other ground now to be decided, the following:
The opinion of the Court of Appeals recites the following facts: Thus the question of identity of the bond agreed to have been attached was open for parol proof on another trial. In this holding by the Court of Appeals, petitioner insists there was error.
The Court of Appeals cited in support of its holding Kyle v. Jordan, 196 Ala. 509, 511, 71 So. 417, 418, where it was said:
This is the rule adhered to in this jurisdiction. Jones et al. v. Jones et al., 219 Ala. 62, 121 So. 78; Formby v. Williams,
In Butler Cotton Oil Co. v. Millican, 216 Ala. 472, 474, 113 So. 529, 530, touching the question and the value of the authority of Johnson v. Buck, 35 N.J.Law, 338, 10 Am.Rep. 243, Mr. Justice Sayre said:
To continue reading
Request your trial-
Waters v. W. O. Wood Realty Co., 6 Div. 320
...the reference was intended to apply, may be shown by parol evidence. That principle was reaffirmed in the case of Fidelity & Casualty Co. v. Raborn, 234 Ala. 31, 173 So. 402. The principle that a written contract supersedes all negotiations between the parties is inapplicable where those ne......
-
Borden v. Case
...the bar of the statute of frauds. There are also many other cases equally sustentive, some of which are: Fidelity & Casualty Co. of New York v. Raborn, 234 Ala. 31, 173 So. 402; Horton v. Wollner, Hirshberg & Co., supra; O'Barr v. Turner, 16 Ala.App. 65, 75 So. We attain the conclusion that......
-
Employers Ins. Co. of Alabama, Inc. v. Diggs
... ... A.L.R. 17; St. Louis Arch. Iron Co. v. New Amsterdam Cas ... Co. (C.C.A.) 40 F. (2d) 344; United States F. & G ... Co. v ... In the ... recent decision in United States Fidelity & Guaranty Co ... v. Hearn, 233 Ala. 31, 170 So. 59, the last-quoted ... Fidelity & ... Casualty Co. v. Raborn (Ala.Sup.) 173 So. 402, and ... authorities. This reference to the ... ...
-
Fidelity & Casualty Co. of New York v. Raborn
...is a companion case to that of Fidelity & Casualty Company of New York v. William Raborn (Ala.App.) 173 So. 399, certiorari denied (Ala.Sup.) 173 So. 402. The two cases were jointly tried, are here submitted on separate records and involve the same questions on appeal, thus rendering a deci......