National Sur. Corp. v. Vandevender
| Decision Date | 16 February 1959 |
| Docket Number | No. 41027,41027 |
| Parties | NATIONAL SURETY CORPORATION v. Leonard G. VANDEVENDER. |
| Court | Mississippi Supreme Court |
Robertshaw & Mansour, Greenville, for appellant.
Webb & Webb, Greenville, for appellee.
Appellee, Leonard G. Vandevender, applied to appellant, National Surety Corporation, for a constable's bond, the application containing the following agreement on the part of appellee:
'(b) To indemnify Surety, its successors and assigns, against all loss, liability, costs, damages, attorney's fees and expenses which Surety shall sustain or incur in consequence of executing the bond herein applied for, or any renewal thereof, or any bond in behalf of the undersigned, in making any investigation on account of such bond, in prosecuting or defending any action that may be brought in connection therewith, or in enforcing any of the agreements herein contained. * * *'
The bond was executed by appellant as surety and appellee as principal, and while it was in effect, W. D. Nichols sued appellee and appellant demanding judgment for $7,500 against appellee, and $2,000, the amount of the bond, against appellee. Nichols alleged in his suit that appellee assaulted him while acting as constable. After appellee and appellant were summoned in the Nichols suit, appellant wrote appellee the following letter:
'Dear Mr. Vandevender:
'National Surety received notice of suit filed against you on behalf of W. D. Nichols, and after reviewing the matter determined that suit is filed against you personally, in the amount of $7,500.00 and against National Surety Corporation in the amount of your bond, which is $2,000.00.
'Please accept this letter as notice that National Surety Corporation expects you to defend this suit at your expense and should any expenditures be made by National Surety in investigating, defending, or otherwise protecting your interest and National Surety's interest, you will be expected to reimburse National Surety Corporation for same.
'This point is stated in your Public Official Bond Application wherein it is stated the undersigned, for himself, his heirs, executives, administrators, hereby agrees with National Surety Corporation, hereinafter called Surety:--(b) to indemnify the surety, its successors and assigns against all loss, liability, costs, damages, attorney's fees and expenses which the surety shall sustain or incur in consequence of executing the bond herein applied for or any renewal thereof of any other bond on behalf of the undersigned, in making any investigation on account of such bond, in prosecuting or defending any action that may be brought in connection therewith or with enforcing any of the agreements herein contained.
'National Surety corporation does, however, retain the right to have counsel assist at any time in defending this action.'
Some time after the receipt of this letter, the exact sequence of events not appearing in the record, appellee employed and paid B. B. Wilkes, an able and experienced attorney, to defend the Nichols suit. He also conferred with J. A. Lake, a member of the law firm of Wynn, Hafter, Lake & Tindall, along with Wilkes, in preparing the suit for trial. Wilkes and Lake worked together in successfully defeating the claim of Nichols in the circuit court. Nichols appealed to this Court and the case was affirmed. No one ever suggested to appellee that he would be expected to pay the fee charged by Wynn, Hafter, Lake & Tindall until after the Nichols case was terminated in this Court. Lake told appellee that he was representing appellant. Appellee never employed Wynn, Hafter, Lake & Tindall. Appellant did.
After the Nichols suit was terminated, appellant paid Wynn, Hafter, Lake & Tindall $1,000 attorneys' fee and $81.20 expenses in connection with the defense of the Nichols suit. The record shows without dispute that this fee was reasonable. The present suit was brought in the county court by appellant against appellee to recover said sum of $1,081.20 under the indemnity agreement mentioned above. The jury in the county court returned a verdict for appellant for the sum of $81.20, the amount of expenses in the Nichols suit, as to which expense there is no dispute between the parties. Appellant appealed to the circuit court where the county court judgment was affirmed. Appellant now appeals to this Court seeking judgment for the full sum sued for.
We assume that, except for the question of estoppel, hereinafter discussed, appellant was entitled to reimbursement from appellee of all reasonable sums paid out by it in good faith in defending the Nichols suit, including fees for attorneys of appellant's choice. We are of the opinion that under the...
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