Maine Lumber Co. v. Maryland Casualty Co.

Headnote

Contract — sale — principal and surety — damages —• action to recover upon bond for breach of contract to deliver goods.

Maine Lumber Co., Ltd., v. Maryland Casualty Co., 216 App. Div. 35 , affirmed.

Appeal from a judgment, entered March 31,1926, upoñ an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiff. The action was to recover upon a bond given by defendant, appellant, to secure the performance by its principals, interpleaded defendants, of a contract with the plaintiff for the sale of lumber. Such defendants failed to perform in full. The questions

were as to the nature of the liability of the defendant, appellant, upon its bond, and as to what damages the plaintiff should recover thereunder. The trial court held that the bond upon which the plaintiff sued was one of indemnity, and that the plaintiff, in order to recover of the surety company, was required to first show that it had paid a loss. The Appellate Division held that the bond was one of surety, and that plaintiff was entitled to recover any loss it sustained by reason of the breach of contract.