American Surety Co. v. Thurber — 21 N.Y. St. Rep. 459

Majority

p. 459

American Surety Co., Resp’t, v. Frances B. Thurber et al., App’lts.

(New York Superior Court, General Term,

Filed January 8, 1889.)

Headnote

1. Contracts—Construction of.

An agreement of indemnity is to be construed so as to give due effect to each and every part thereof, according to the intention of the parties .at the time.

2. Same—Execution of similar agreements by otbers cannot affect RIGHT OF RECOVERY.

The execution to the plaintiff pf separate indemnity agreements by other execution creditors for the whole loss similar to that given by the defendants, cannot affect the right of the plaintiff to recover the whole loss from the defendants.

Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.

II. Arlington, for app’lts; Dill, Chandler & Seymour, for resp’t.

This action was brought upon an indemnity agreement executed by the defendants to the plaintiff, to recover the sum which the plaintiff had been compelled to pay. The extent of the liability of the defendants depends upon the said agreement, and this is to be construed as to give due effect to each and every part thereof according to the intention of the parties at the time.

When thus construed, the reference in one of the recitals to the sum of $214.52 _must be rejected as plainly erroneous. It does not constitute the whole of the recital as to the extent of the bond given by the plaintiff at the request of the defendants to the sheriff of Columbia county, but, on the contrary, the recital goes on to say, viz.: “A copy of which bond is hereto annexed, marked ‘A,’ and forms a part hereof.”

The copy of the bond thus referred to, appears to have been actually annexed. It therefore forms part of the same recital, and corrects any misdescription therein. It shows the amount of liability assumed by the plaintiff to be $10,000; it recites the names of a large number of execution creditors interested like the defendants in the proposed levy, and it expressly covenants to indemnify the sheriff against all damages, etc., which may arise from the levying upon and making sale of under and by virtue of “ such executions,” all or any personal property which he may judge to belong to such judgment debtor, etc. This clearly contemplated that the sheriff was to under all such executions.

With this bond in their immediate view, and annexed to their own. agreement, the defendants covenanted with the plaintiff that they “ will, at all times, indemnify and keep indemnified, the said company from and against all loss,' damages, costs, charges, counsel fees and expenses whatsoever, which said company shall or may, for any cause, at any time, sustain or incur by reason or in consequence of said company having executed said agreement; and does further covenant and agree to pay to said company and its representatives, all damages for which said company or its representatives shall become responsible upon the said bond before said company or its representatives shall be compelled to the same, etc.

Nothing in this agreement limits the obligation of the' defendants to the amount of their execution, which was $256.79, instead of $214.52, orto any pro rata share of the loss, and there is no reference to any other agreements of like character, or to any other persons who are to bear a portion of the loss. The agreement, as a whole, is a plain, direct and specific contract on the part of the defendants, to save the plaintiff harmless from the whole loss. There is no ambiguity. The operative words of the agreement being clear and unambiguous, they cannot be controlled by the erroneous recital. Holmes v. Hubbard, 60 N. Y., 183 . For

p. 461

the some reason it can make no difference that some of the other execution creditors executed to the plaintiff separate indemnity agreements for the whole loss similar to that given by these defendants. If all the execution creditors, including the defendants, had executed to the plaintiff a joint agreement, a different question would be presented.

The defendants failed to prove any conspiracy or collusion, and an examination of the whole case shows that all the exceptions taken by them are untenable. When the proofs were closed, there was no question for the jury, and consequently the verdict was properly directed.

The judgment and order should be affirmed, with costs.

Ingraham, J., concurs.