Bernard-Beere v. Klaw

The bond of indemnity in terms restricted the liability of the defendants to the amount which the plaintiff might be called upon to pay under a written contract. The obligation could not be enlarged in an action brought to enforce the stated liability, and the sole purpose of the evidence, excluded at the trial, was to show the existence of a contract not covered by the bond in suit.

Doubtless, a reformation of the instrument, to express the intention of the parties, might have been obtained in an action brought for that purpose in a court having jurisdiction to grant the appropriate relief, but, having elected to sue upon the instrument as it stands, the plaintiff has invited defeat and has left us no alternative but to affirm the judgment.

Present: Bischoff, P. J., Leventritt and Clarke, JJ.

Judgment affirmed, with costs.