Nat'l Sur. Co. v. Nazzaro

• Decision Date: 21 May 1919
• Citation: 123 N.E. 346,233 Mass. 74
• Parties: NATIONAL SURETY CO. v. NAZZARO. NAZZARO v. NATIONAL SURETY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 74

123 N.E. 346

NATIONAL SURETY CO.

v.NAZZARO.

NAZZARO

v.NATIONAL SURETY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1919.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Actions by the National Surety Company against Michael B. Nazzaro, and by Michael B. Nazzaro against the National Surety Company. Verdicts were directed for the Surety Company in each case, and Nazzaro excepts. Exceptions sustained.

J. E. McConnell, of Boston, for National Surety Co.

John E. Crowley, of Boston, for Nazzaro.

DE COURCY, J.

These actions, based on an indemnity contract, arose out of the following transaction: Nazzaro applied at its Boston agency to have the surety company become surety on a bail bond to the state of Connecticut, in behalf of one Frank McKenna, who was under arrest in that state. He paid the premium, executed a contract of indemnity to protect the surety company against loss, and deposited with it as collateral security the sum of $600. The agent gave to Nazzaro a letter introducing one Blume to Fitch D. Crandall, the company's agent at New London; the letter stating that Blume was to arrange ‘details with you [Crandall] in connection with the execution of a bail bond in behalf of Frank McKenna.’

The New York office of the surety company forwarded to Crandall a bail bond for $1,000, on which the company was surety. With Blume and an attorney employed by Blume as counsel for McKenna, Crandall went to the courthouse and presented the bail bond. The clerk of the court refused to accept it, but said he would accept the personal recognizance of Crandall. After some telephone communication with the company's New York office, Crandall recognized for the prisoner's appearance at court, and later the company executed a bond to indemnify him. McKenna was afterwards defaulted, and Crandall's liability on the recognizance was discharged by the check of the surety company for $1,000 paid to the prosecuting attorney.

The action of the National Surety Company was brought to recover the difference between the $600 deposited by Nazzaro and the $1,000 it paid in discharge of Crandall's liability, together with its counsel fees. Nazzaro seeks by his action to get back the $600 deposited by him as collateral security. The instrument on which the surety company seeks to prevail is a comprehensive, carefully framed indemnity contract under seal, presumably prepared by the company. It plainly contemplates the signing of a ‘bail bond’ by the company, as surety. It recites, ‘Whereas, the company signed and executed said bond as such surety upon condition of the execution and delivery hereof. * * *’ Nazzaro's obligation is expressly confined to indemnifying and saving harmless the company from its liability ‘upon said instrument,’ or in connection therewith. As matter of fact the bail bond which the company signed was not accepted, and never became operative. The release of McKenna was not obtained on a bail bond, but on a recognizance. And the surety on the recognizance was not the surety company but Fitch D. Crandall.

The words ‘recognizance’ and ‘bail’ when used in statutes are often construed as interchangeable; and speaking generally like rules of law are applicable to both these kinds of obligation. See Com. v. Gove, 151 Mass. 392, 24 N. E. 211;Lovejoy v. Isbell, 70 Conn. 557, 40 Atl. 531;In re Brown, 35 Minn. 307, 29 N. W. 131;Swan v. United States, 3 Wyo. 151, 9 Pac. 931. Nevcrtheless a bail bond and a recognizance are intrinsically different. In criminal cases a bail bond is a contract under seal, executed by the accused, and...