National Surety Co. v. Nazzaro

Citation233 Mass. 74
Decision Date20 May 1919
CourtUnited States State Supreme Judicial Court of Massachusetts

March 6, 1919.

Present: RUGG, C.


Contract, What constitutes, Performance and breach. Bail. Words "Bail," "Recognizance."

No action can be maintained by a surety company upon a contract in writing to indemnify it against loss which it might incur by reason or in consequence of having executed a bail bond to secure the release of one under arrest in Connecticut, if it appears that the bail bond, when presented to the clerk of the court in Connecticut, was refused by him and that the prisoner instead of being released by reason of the bond, was released upon the personal recognizance of an officer of the surety company. Difference between a bail bond and a recognizance pointed out.

TWO ACTIONS OF CONTRACT, the first action being upon an agreement in writing by the defendant to indemnify the plaintiff against loss arising from its becoming surety upon a bail bond for one Frank McKenna, under arrest in the State of Connecticut and charged with larceny. The second action was upon an account annexed for $600, money deposited by the plaintiff with the defendant "in matter of bail bond of Frank McKenna." Writs dated, respectively, February 14 and February 20, 1917.

The provision of the indemnity contract material to the actions was as follows:

"Second: That the undersigned [Nazzaro] shall and will at all times indemnify and keep indemnified the Company, and hold and save it harmless from and against any and all damages, loss costs, charges and expenses of whatsoever kind or nature including counsel and attorneys' fees, which the Company shall or may at any time sustain or incur by reason or in consequence of having executed said instrument [the bail bond]; and that we will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money which it or its representatives shall pay or cause to be paid or become liable to pay on account of having executed said instrument and on account of any damages, costs, charges and expenses of whatsoever kind or nature, including counsel and attorneys' fees, which the company or its representatives may pay, or become liable to pay by reason of having executed said instrument, or in connection with any litigation, investigation or other matters growing out of or connected therewith, such payment to be made to the Company as soon as it shall have become liable therefor, whether the Company shall have paid out said sum or any part thereof or not."

In the Superior Court the cases were tried together before McLaughlin, J. The material evidence is described in the opinion. The judge refused requests by Nazzaro, made at the close of all the evidence, that a verdict be ordered for him in each action, and, at the request of the surety company, ordered a verdict for it in the first action in the sum of $500, and for it as defendant in the second action. Nazzaro alleged exceptions.

J. E. Crowley, for Nazzaro. J. E. McConnell, for the National Surety Company.

DE COURCY, J. These actions, based on an indemnity contract, arose out of the following transaction: Nazzaro applied at the Boston agency of the surety company to have it 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 court house 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...

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