Stehle v. United Sur. Co.

• Decision Date: 15 January 1908
• Parties: STEHLE et al. v. UNITED SURETY CO.
• Court: Maryland Court of Appeals

68 A. 600

107 Md. 470

STEHLE et al. v. UNITED SURETY CO.

Court of Appeals of Maryland

January 15, 1908

Appeal from Circuit Court, Anne Arundel County; Wm. H. Thomas Judge.

Action by Frederick Stehle, Jr., against Samuel Jones, in which the Maryland Electric Railways Company was summoned as garnishee and in which the United Surety Company intervened as claimant of the property in the hands of the garnishee. From a judgment for claimant, plaintiff and the garnishee appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, and BURKE JJ.

James M. Munroe, for appellants.

Ridgely P. Melvin, for appellee.

BRISCOE J.

On the 16th of August, 1906, the plaintiff Frederick Stehle, Jr. caused an attachment to be issued out of the circuit court for Anne Arundel county against the defendant Samuel Jones. The attachment was laid in the hands of the Maryland Electric Railways Company as garnishee, a corporation doing business in this state. The suit was instituted to recover the sum of $3,181.50 alleged to be due and owing from the defendant to the plaintiff for work done and materials furnished for the Baltimore & Annapolis Short Line Railroad between stations Revell and Arnolds, in Anne Arundel county. On the 1st day of May, 1907, the garnishee appeared and pleaded (1) that there was justly due and owing to the account of Samuel Jones the sum of $439.57 as by an annexed account; (2) that the fund was held subject to the settlement of the question whether Jones or his surety, the United Surety Company, is entitled to the fund attached in its hands. On the 12th of April, 1907, the appellee the United Surety Company intervened by petition, as claimant, of the property attached, alleging, in substance, that it was a body corporate, with its home office in the city of Baltimore; (1) that the money, goods and chattels, in the schedule annexed to the attachment issued in the case, at the time of the laying of the attachment, were, and ever since have been, and now are, the property of the appellee corporation; (2) that it is entitled to the money, chattels, and credits attached, and it prays judgment as to whether the plaintiff ought to have condemnation of the sum of money at issue in the attachment, and returned therein as of the money, goods, chattels, and credits of the defendant Jones. Issue was joined, and from a judgment on finding of court in favor of claimant for assets ($439.57) admitted by the garnishee, with interest, this appeal has been taken. The controversy here it appears arises out of the contentions as to the meaning and proper construction of a bond executed by the appellee company, as surety, in favor of the garnishee company, guaranteeing the faithful performance of a contract between the railway company and the defendant, Jones, to do certain grading for the last-named company, between Revell and Arnolds stations in Anne Arundel county, along the line of the road. The questions are presented by a single exception, and that is to the rejection by the court of a prayer offered by the defendant at the conclusion of the case. The defendant, by this prayer, asked the court to rule that there was no evidence in the case legally sufficient to entitle the claimant of the fund to recover the assets admitted to be due by the garnishee, for the reasons that the contract, under which the plaintiff claims the assets, is a contract of indemnity, and plaintiff has offered no evidence of any loss or claim against which it is entitled to be or seeks to be indemnified.

The vital facts of the case, upon which the ruling was asked, are practically undisputed, and are as follows: On the 8th of June, 1906, the Baltimore & Annapolis Short Line Railroad Company, now the Maryland Electric Railways Company contracted with the defendant Samuel Jones to do certain grading for the company between Revell and Arnolds stations, in Anne Arundel county, under a written contract set out in the record. By the contract the defendant was required to give bond, and upon application, the appellee became surety on this bond, in favor of the railway company for the faithful performance of the work according to the terms of the contract. The bond was accepted by the company, and contains the following express condition, as applicable to this case: "If the said principal shall voluntarily abandon said contract, or be lawfully compelled by the obligee to cease operations thereunder by reason of his nonperformance of any of its terms or conditions, then the surety shall have the right in its option to assume the said contract and to sublet or complete the same, and, if the contract shall be assumed by the surety, then, as such contract is duly performed, any reserve, deferred payments and all other moneys provided by said contract to be paid to the principal shall be paid to the surety at...