Brown v. Title Guaranty & Surety Co.
Brown v. Title Guaranty & Surety Co.
Opinion of the Court
Opinion by
The route of the Pittsburg, Binghamton & Eastern Railroad Company, as surveyed and laid out, ran through lands of the appellee. He accepted its bond, with the appellant as its surety, to secure the payment of the damages to which he might be entitled. The condition of the obligation was as follows: “If the said Pittsburg, Binghamton & Eastern Railroad Company shall pay or cause to be paid unto the said John H. Brown such amount of damages as the said John H. Brown shall be entitled to receive, in consequence of the location and construction of said railroad after the same shall have been agreed upon by the parties or assessed by and under the provisions of the acts of the general assembly, in such case made and provided, whether the same exceed the amount of the penalty in this bond mentioned, or not, without fraud or further delay, then this obligation to be null and void; otherwise to be and remain in full force and effect.” Some months after the bond was given to the appellee he and the railroad company agreed, in writing, that the value of the land and the damages to his property by reason of the location and construction of the railroad through and over it amounted to $5,500, and the agreement provided that upon the payment of the said sum, with interest, he would execute and deliver a deed to the railroad company for the right of way and the land occupied, free and clear of all incumbrances. The unsuccessful contention of the appellant in the court below, renewed here, is that the agreement of the appellee with the railroad company, made without notice to or consent by it, released it from liability on the bond, because “the amount agreed to be paid by the railroad company included not only the dam
The appellant is engaged in the business of becoming surety. It assumes its undertakings for a consideration and the rule of strietissimi juris which applies to an individual surety is relaxed as to it. “ The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a company chartered for the conduct of such business. In the one case the rule of strietissimi juris prevails, as it always has; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such' a company can be relieved from its obligation for suretyship only where a departure from the contract is shown to be a material variance. ‘ The doctrine that a surety is a favorite of the law, and that a claim against him is strietissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee:’ 32 Cyc. 306, and the authorities there cited in support:” Young v. American Bonding Company, 228 Pa. 373. See also City of Philadelphia v. Fidelity & Deposit Company of Maryland, 231 Pa. 208, decided at present term.
The appellant’s contract of suretyship with the appellee was that it would pay him, if the railroad company did not, the amount of damages to which he might be entitled in consequence of the location and construction of the railroad, after said amount had been agreed upon by him and
If an entire lot of ground, and not merely a portion of it, is taken for railroad purposes, the value of the entire lot at the time of the taking determines the amount of damages: Spring City Gas Light Company v. Pennsylvania Schuylkill Valley R. R. Co., 167 Pa. 6. No allowance is made for any reversionary interest in the owner, for the fee, subject to the easements or right of way, is absolutely worthless: Junction Railroad Company v. Philadelphia, 88 Pa. 424. The interest acquired by a railroad company under the right of eminent domain, while not a fee, is not a mere easement or right of way. It is more. It is the right to the actual and exclusive possession of the property at-all times and for all purposes except where a way crosses it: Pittsburgh, Ft. Wayne & Chicago Ry. v. Peet, 152 Pa. 488; Reading v. Davis, 153 Pa. 360; Dilts v. Plumville R. R. Co., 222 Pa. 516. “Such title is sometimes called an easement., but it is a right to exclusive possession, to fence in, to build
The agreement between the railroad company and the appellee as to the amount of damages to which he was entitled was substantially such as is contemplated by the act
Both assignments of error are overruled and the judgment is affirmed.
Reference
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- Brown v. Title Guaranty & Surety Company
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- Principal and surety — Contracts—Surety company — Construction— Eminent domain — Land damages — Railroads—Conveyance of fee. 1. The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a compány chartered for the conduct of such business. In the one ease the rule of strictissimi juris continues to prevail; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such a company can be relieved from its obligation of suretyship only where a departure from the contract is shown to be a material variance. The doctrine that a surety is a favorite of the law, and that a claim against him is strietissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee. 2. Land taken from an owner under the right of eminent domain for railroad purposes has no further practical value to the owner, in view of the rights of the railroad company in it and over it, and therefore, though only an easement is taken for the public use, no deduction is made, in practice, in the assessment of damages, for the reversionary right. 3. Where a surety company enters into a contract of suretyship with a landowner to secure tbe payment to him of damages resulting from the. taking of his land by a railroad under right of eminent domain,the contract stipulating that the surety company would pay him, if the railroad did not, the amount of damages to which he might be entitled in consequence of the location and construction of the railroad, after said amount had been agreed upon by him and the railroad company or assessed under the provisions of the statute, there is no material departure from the bond and the surety company is liable thereunder where an agreement is entered into between the landowner and the railroad company fixing “the value of the land and the damages to the property by reason of the location, and construction of the railroad through it” at a fixed sum, and providing for the conveyance of the land to the railroad company in fee.