Pacific Indemnity Company v. Wyrembek
| Decision Date | 11 April 1960 |
| Docket Number | No. 57-C-187.,57-C-187. |
| Citation | 183 F. Supp. 252 |
| Parties | PACIFIC INDEMNITY COMPANY, a corporation, Plaintiff, v. J. E. WYREMBEK, a/k/a Joseph E. Wyrembek, Sr., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Suel O. Arnold and James T. Murray, Milwaukee, Wis. (Arnold, Philipp & Murray, Milwaukee, Wis., of counsel), for plaintiff.
Jack J. Gimbel, Milwaukee, Wis., for defendant.
This is an action on a contract of indemnity executed by defendant as indemnitor and plaintiff as surety at Albuquerque, New Mexico, on January 31, 1951. Jurisdiction is based on diversity of citizenship, plaintiff being a California corporation and defendant being a citizen of Wisconsin.
Prefatory recitals of the contract in question reveal that the indemnitor requested Pacific Indemnity Company to execute or continue a certain performance bond or bonds on behalf of A-Key, Inc., as principal, in favor of Congregation Albert covering a certain construction undertaking; that Pacific Indemnity Company is about to execute or continue said bond upon condition of the execution of the indemnity contract; and that the indemnitor has a substantial, material, and beneficial interest in the obtaining or continuation of such bond. In the "Eighth" provision of the contract the indemnitor agrees that the contract is executed for the purpose of procuring the execution or continuance of a bond.
The recital of consideration includes the execution or continuance of said bond. Under the contract the indemnitor agrees to indemnify and save harmless the surety from and against all claims incident to the performance bond in question. Defendant Wyrembek signed the contract, as indemnitor, under seal. The acknowledgment was executed before Elizabeth Quinn, a Notary Public, at Bernalillo County, State of New Mexico. The contract was witnessed by Victor Salazar.
The following facts appear from the depositions read at the trial and testimony there given. On July 14, 1950, A-Key, Inc., a New Mexico corporation, entered into a contract with Congregation Albert for the construction of a building at Albuquerque, New Mexico. Defendant was the President and a stockholder of A-Key, Inc. Plaintiff issued a bid bond to A-Key, Inc., and obtained two financial statements, neither of which were wholly satisfactory. A contract of indemnity, executed by all stockholders of A-Key, Inc., was requested and obtained by plaintiff prior to the issuance of a performance bond on behalf of A-Key, Inc., as principal, in favor of Congregation Albert. Plaintiff issued one other performance bond on behalf of A-Key, Inc., for construction of a residence for a Mr. Johnson.
Plaintiff's superintendent of bond claims, James A. Gittinger, was notified by plaintiff's local agent, Victor Salazar, on January 20, 1951, that A-Key, Inc., had outstanding bills in excess of the retention funds held for completion of the construction under the contract with Congregation Albert. On being informed that A-Key, Inc., believed that it could close out the contract without involving the bonding company, plaintiff refrained from taking over the completion of the construction after the execution of the indemnity contract in question here and for a period of three months thereafter. On May 5, 1951, Congregation Albert notified plaintiff that it had declared A-Key, Inc., in default on the construction contract and requested plaintiff to take over completion. Thereafter, plaintiff carried through all the arrangements for completing the job, paid the bills, and settled all claims.
In respect to the execution of the indemnity contract in question, plaintiff's agent, Victor Salazar, recalled witnessing the instrument. It was his practice not to witness signatures unless he saw the person affix the signature to the document. He stated that the blanks were filled in when the contract was executed, that the notary was present when it was signed, and that the execution took place in his office.
The notary who took the acknowledgment, Elizabeth Quinn,...
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Farmers Auto. Ins. Ass'n v. Union Pac. Ry.
...though, is responsible for evaluating the obligations it takes on before entering into that agreement. See Pac. Indem. Co. v. Wyrembek, 183 F.Supp. 252, 255 (E.D.Wis. 1960). A mistake of law by a party who fails to research and protect its legal rights, and who fails to fully consider the l......
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American Property Services, Inc. v. Barringer
...Inc. v. Stahl, 1976, S.D., 238 N.W.2d 483; Seaboard Surety Company v. Harbison, 1962, 7 Cir., 304 F.2d 247; Pacific Indemnity Company v. Wyrembek, 1960, D.C.Wis., 183 F.Supp. 252. See also 12 C.J.S. Brokers § 108. If an affirmative defense is not pleaded, it is waived to the extent that the......
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Jacobson v. Maryland Casualty Co.
...should give such testimony, that testimony would not establish any defense to plaintiff's claim. See Pacific Indemnity Company v. Wyrembek, D.C.Wisc., 1960, 183 F.Supp. 252, 254. We know of no material facts that are in dispute, particularly when consideration is given to what has occurred ......
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Seaboard Surety Company v. Harbison, 13638.
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