National Surety Co. v. Portnoy
| Decision Date | 04 June 1926 |
| Parties | NATIONAL SURETY COMPANY v. BARNETT PORTNOY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 5, 1926.
Present: RUGG, C.
J., CROSBY, PIERCE & WAIT, JJ.
Contract Performance and breach, Of indemnity. Evidence, Competency.
If an agreement for indemnity of a surety company against loss through its being surety upon a bond provided that the company was authorized "to . . . compromise any claim, demand, suit or judgment upon any such bond or bonds, unless the indemnitors shall request such surety . . . to litigate such claim . . . and shall, simultaneously with such request, deposit with such surety . . . collateral satisfactory to it . . .," the company has a right so to compromise an action upon the bond without first procuring assent by the indemnitors, although at a trial of that action before an auditor, an attorney acting for the indemnitor appeared and took a watching part in some of the proceedings, and the surety knew that the indemnitor wished that action defended, if it appears that no collateral was offered to the surety or requested by it there being nothing to warrant a finding that the terms of the indemnity agreement requiring collateral as a condition of any limitation on the surety's power to compromise had been waived.
CONTRACT upon an agreement to indemnify the plaintiff against loss through its being surety upon a bond given by the Chelsea Theatre Company. Writ in the Municipal Court of the City of Boston dated November 5, 1923.
On removal to the Superior Court, the action was tried before Whiting, J. Material evidence and the only question of law raised at the trial are stated in the opinion. There was no verdict. The judge reported the action to this court on the stipulation between the parties, agreed to in open court, that, if the trial judge was right in excluding certain testimony offered, judgment was to be entered for the plaintiff for the amount stated in the declaration, with interest from the date of the writ; otherwise, if the trial judge was wrong in excluding the evidence, the action was to stand for trial.
J.E. Crowley, for the defendant. J.E. McConnell, for the plaintiff, submitted a brief.
This is an action against an indemnitor to recover the amount paid by a surety in compromise of a suit upon a bond. The only question presented by the report is whether certain evidence was excluded wrongly.
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Starks v. O'Hara
...admissibility of the evidence offered was for him to determine. Coghlan v. White, 236 Mass. 165, 169, 128 N. E. 33;National Surety Co. v. Portnoy, 256 Mass. 329, 152 N. E. 363. It was not improper to direct the jury to retire while he heard it. Slotofski v. Boston Elevated Railway, 215 Mass......
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Starks v. O'Hara
...U.S. 183, 186. The admissibility of the evidence offered was for him to determine. Coghlan v. White, 236 Mass. 165 , 169. National Surety Co. v. Portnoy, 256 Mass. 329 . was not improper to direct the jury to retire while he heard it. Slotofski v. Boston Elevated Railway, 215 Mass. 318 , 32......
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