National Surety Co. v. Johnson

Citation115 Or. 624,239 P. 538
PartiesNATIONAL SURETY CO. v. JOHNSON.
Decision Date29 September 1925
CourtSupreme Court of Oregon

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by the National Surety Company against J. Harris Johnson. Decree for defendant, and plaintiff appeals. Affirmed.

A. G. Barry, of Portland (Bert W. Henry and Griffith, Leiter & Allen, all of Portland, on the brief), for appellant.

Martin L. Pipes, of Portland (George A. Pipes and John M. Pipes both of Portland, on the brief), for respondent.

BURNETT J.

Apprehending that it would need sureties in its future contracts with municipal corporations and the like, a corporation called the Consolidated Contract Company, with the defendant, J. Harris Johnson, and others not appearing here as comakers, executed and delivered to the plaintiff their joint and several contract under seal, whereby they agreed to pay premiums on all bonds to be thereafter executed by the plaintiff here for the contract company, covenanting that the liability formulated by the instrument would continue until all other obligations had been discharged, and principally:

"That we will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all demands, liabilities, and expenses of whatsoever kind or nature, including counsel and attorney's fees, which it shall at any time sustain or incur by reason or in consequence of having executed such bonds and undertakings, and that we will pay over, reimburse and make good to the company, its successors or assigns, all sums and amounts of money which the company or its representatives shall pay or cause to be paid or become liable to pay under its obligation upon such instruments, or as charges and expenses of whatsoever kind or nature, including counsel and attorneys' fees, by reason of the execution thereof, or in connection with any litigation, investigation, or other matters connected therewith, such payment to be made to the company as soon as it shall have become liable therefor, whether it shall have paid out said sum or any part thereof or not."

Other provisions of the instrument are here set out:

"That in any settlement between us and the company the vouchers or other proper evidence showing payment by the company of any such loss, damage, or expense shall be prima facie evidence against us of the fact and amount of our liability to the company; provided that such payment shall have been made by the company in good faith, believing that it was liable therefor.
"Fourth. That in case any action at law, suit in equity or other proceeding be commenced or threatened, or notice of such action, suit or proceeding be served upon the undersigned, affecting the liability of the Company upon any such instruments, or growing out of any matter connected therewith, or on account of which any such instruments were given, we will immediately so notify the company at its principal offices in the city of New York.
"Fifth. That the company may at any time take such steps as it may deem necessary or proper to obtain its release from any and all liability under any of the said instruments, and to secure and further indemnify itself against loss; and all damages and expenses which the company may sustain or incur or be put to in obtaining such release, or in further securing itself against loss, shall be borne and paid by us."

While this instrument, known in the pleadings as Exhibit B was still in force and effect, the plaintiff here executed a bond with the Consolidated Contract Company to the city of Portland, with conditions as follows:

"The conditions of this obligation are such that, whereas the above bounden principal, the Consolidated Contract Company, a corporation, has entered into contracts with the city of Portland for the improvement of various streets throughout the said city, with hard-surface pavement; and whereas the Hassam Paving Company, a Massachusetts corporation, and the Oregon Hassam Paving Company, an Oregon corporation, have filed a statement with the city of Portland, claiming that the said pavement, as laid by the Consolidated Contract Company, is an infringement upon certain patent rights which they hold; and whereas, the Consolidated Contract Company is desirous of indemnifying the city of Portland against any and all loss or damage which it, the said city of Portland, may suffer by reason of any royalties or damages claimed or any delays caused by any suits which the Hassam Paving Company, or the Oregon Hassam Paving Company, or either of them, may file or cause to be filed, enjoining, or attempting to enjoin, the Consolidated Contract Company from laying its pavement on any of the streets covered by the above mentioned contracts:
"Now, therefore, if the said contractor, the Consolidated Contract Company, shall indemnify and save harmless the city of Portland against all claims, royalties, damages, costs of litigation, and pay and discharge all judgments or decrees rendered or entered against the city, in an amount not to exceed twenty-five thousand ($25,000) dollars, then this obligation shall be void, otherwise to remain in full force and virtue."

This last undertaking is known as Exhibit "A" in the pleadings. After averring the execution of the two instruments thus described, the complaint charges:

"That thereafter the said Consolidated Contract Company constructed hard-surface pavements upon the streets of said city of Portland, and the parts thereof designated in its said several contracts with said city, and said pavement was used by the said city, but in doing so both the said contract company and said city infringed certain United States patents owned by said Hassam Paving. Company and said Oregon Hassam Paving Company, and they and each of them, on account of said infringement, became liable to said paving companies for an accounting of profits and for damages in a sum much in excess of nineteen thousand ($19,000) dollars, and this plaintiff was, by reason of its execution of the undertaking or bond (Exhibit A), liable therefor. This
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8 cases
  • Fulton Ins. Co. v. White Motor Corp.
    • United States
    • Supreme Court of Oregon
    • 2 d3 Fevereiro d3 1972
    ...has not been established by a judgment, facts establishing it must be pleaded and proved in the indemnity action. National Surety Co. v. Johnson, 115 Or. 624, 239 P. 538 (1925); Aetna Freight Lines, Inc. v. R. C. Tway Company, supra; Nelson v. Sponberg, supra. Here it is alleged only that t......
  • HARTFORD ACCIDENT AND INDEMNITY COMPANY v. Payne, Civ. No. 63-351.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 10 d3 Março d3 1965
    ...Automobile Ins. Co., 219 Or. 110, 115, 341 P.2d 110, 346 P.2d 643, 76 A. L.R.2d 485 (1959). For that matter, National Surety Co. v. Johnson, 115 Or. 624, 239 P. 538 (1925), and New Amsterdam Casualty Co. v. Terrall, 165 Or. 390, 107 P.2d 843 (1940), may be more in point. If California law a......
  • Speight v. Simonsen
    • United States
    • Supreme Court of Oregon
    • 29 d2 Setembro d2 1925
  • Oregon-Washington R. & Nav. Co. v. Reid
    • United States
    • Supreme Court of Oregon
    • 2 d2 Março d2 1937
    ...... Company of St. Paul, Minn., plaintiff herein, was named as. surety. After the mandate in the law action was entered on. April 1, 1936, the judgment debtors two ...175, 294 P. 347;. Weinstein v. Mullen, 116 Or. 549, 240 P. 879;. National Surety Co. v. Johnson, 115 Or. 624, 239 P. 538. What appellants' evidence may be at the ......
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