Wagner v. Fireman's Fund Insurance
Wagner v. Fireman's Fund Insurance
Opinion of the Court
Appellants Flora Construction Company and Argus Construction Company, Wyoming corporations,
The basis of liability for the judgment against all of the appellants is an indemnity agreement which was furnished to the surety company.
“That in order to secure the bonds required, the joint venture applied to the plaintiff for such bonds, and, at about the time of the application for the bonds, the applicants, including Flora Construction Company, Argus Construction Company, Walter Flora and Mildred Flora, who were the principal officers and stockholders of Flora Construction Company, and William Wagner and J. A. Tretheway, who were stockholders of Argus Construction Company, agreed to execute an indemnity agreement in their individual capacities.
That the two bonds were in fact executed by the plaintiff on or about the 11th day of May, 1959, and subsequent thereto the four individuals previously named executed and delivered to the plaintiff their indemnity agreement, under which they agreed to indemnify the plaintiff for loss or expenses incurred as a result of the writing of the said bonds or in connection with the performance of the said contract.
That there was a valuable consideration for the execution of the Indemnity Agreement by the indemnitors in that it was agreed between those persons and the plaintiff that such an indemnity agreement would be executed by those persons if the payment and performance bonds should be executed by the plaintiff.”
The parties agree that if the indemnity contract was executed pursuant to an antecedent agreement or understanding that an indemnity agreement would be forthcoming, and as an inducement for the execution of the surety bonds, then the indemnity is a part of the original transaction and supported by the consideration of the principal contract, even though its execution was at a later date. The rule is well-stated in Fidelity & Deposit Co. of Maryland v. O’Bryan, 180 Ky.
“ * * * the execution of a bond of indemnity subsequent to the execution of the original undertaking will have the same force and effect as if it were executed simultaneously with the original undertaking, if its subsequent execution was pursuant to an arrangement or agreement, between the indemnitee and the indemnitors, at the time or before the indemnitee became bound, that there should be executed to it a bond of indemnity.”
See, also, Universal C. I. T. Credit Corp. v. De Lisle, 47 Wash.2d 318, 287 P.2d 302, and cases collected 167 A.L.R. 1174.
The effect of appellant’s argument is that there is no substantial evidence to support the trial court’s findings. During the negotiations representatives of the joint venture were advised that the bonds would not issue unless the principal officers of the two corporations personally agreed to indemnify the surety company against loss. Although Flora carried on the negotiations for the bonds on behalf of the joint venture and agreed that the personal indemnities would be furnished, Wagner and Tretheway, both former employees of Flora, knew what was required to obtain the bonds and that Flora was acting for the two corporations. At Flora’s request they furnished the surety with required personal financial statements in which they were referred to as “indemnitors”, and they thereafter signed the indemnity agreement without objection. An agent of the surety company who negotiated the bonding arrangement testified as follows:
“ * * * As is usual, we required the indemnity of the two corporations, Flora Construction Company and Argus Construction Company, and also required the individual indemnity of the officers of each corporation to support the underwriting for the bid bond and the performance and payment bonds, if the contract was awarded. As I recall, we had, of course, a late financial statement in our files of Flora Construction Company and of Walter and Mildred Flora. I required a statement be submitted to us of Argus Construction Company, with a verification of deposit in their bank of the additional working capital that had been required. I also required the individual statements of the officers of Argus Construction Company to support their indemnity. This personal indemnity of the officers of a corporation, especially a new corporation, and also in cases where the individuals involved in a corporation were the primary interests, was a usual practice based upon the adage that no corporation is any better than the people behind it. Thus, in summary, the requirements were the deposit of additional working capital, the indemnity of each corporation as a corporate entity, and the indemnity of the officers of each corporation, and their wives, if necessary, submission of financial statements of Argus Construction Company with verifications of cash on deposit in their bank, and the submission of financial statements of the officers of Argus Construction Company.”
The evidence is adequate to support the finding that the indemnity agreement was contemplated by the original undertaking and did not require new consideration. Cf. Loveland v. Sigel-Campion Live Stock Co., 77 Colo. 22, 234 P. 168, 169.
The appellants contend that their liability under the indemnity agreement is limited to obligations which the surety company was required to assume under the bond provisions, and that this did not include expenditures made by the surety company such as those for services of accountants, engineers and attorneys. The trial court held that all éxpenses incurred in connection with the engineering appraisals and accounting studies, as well as certain legal expenses, were the ordinary “housekeeping and administrative expenses” of the surety com
Regardless of whether the expense incurred for the services of the attorneys is a “liability” under the terms of the bonds, it is a “loss” within the broad language of the indemnity agreement, which requires the indemnitors to reimburse the surety for all losses and expenses incurred by reason of having issued the bonds. Appellants rely upon New Amsterdam Casualty Co. v. Terrall, 165 Or. 390, 107 P.2d 843, and National Surety Co. v. Johnson, 115 Or. 624, 239 P. 538. We do not, however, construe these cases to compel a different result than reached here. The claims for services in the Oregon cases were for investigative and administrative purposes, the same as those for which the trial court here denied recovery.
Appellants assert that the surety company cannot recover for the various legal expenses for the reason that it did not give proper notice that such expenses were being incurred and that they would be chargeable to the appellants as indemnitors. The indemnity agreement does not require notice, but in any event there was adequate notice. All the appellants knew that the services were being performed for the benefit of the joint venture. They were notified by letter from the surety company that they would be required personally to indemnify and reimburse the company for any loss which might arise as a result of having written the bonds.
We have considered other assignments of error presented by the appellants and find none of them to be prejudicial.
The judgment of $750.00 for attorney fees against Walter W. Flora is reversed; otherwise the judgment is affirmed.
. Walter W. Flora and Mildred L. Flora were the principal stockholders and officers of Flora Construction Company; William Wagner and J. A. Tretheway were the officers of Argus Construction Company.
. No cross-appeal was taken from this portion of the judgment.
. Walter W. Flora appeals separately, but both appeals are on the same record and will be disposed of together.
. This instrument was designated an “Application for Performance and Payment Bonds and Indemnity Agreement”, the critical paragraph of which provides:
“Second: Subject to the limitations hereinafter named, the undersigned, Flora Construction Co., Argus Construction Co., Walter Flora, Mildred L. Flora, William Wagner, and J. A. Tretheway by these presents do hereby jointly, severally and unconditionally agree to indemnify and reimburse the Sureties and each of them from and against any and all loss, costs, damages, expenses and attorneys’ fees, and any and all liability arising, resulting, sustained or incurred, or which can or may arise, result from or be sustained or incurred by said Sureties, or any of them, by reason having executed said bonds, or any bond or bonds required by said applicants and given by said Sureties, or any of them, in connection with the performance of said contract, or in making any investigations on account of any obligations incurred under said bonds, or any of them, or any claim made or threatened in connection therewith, or in prosecuting or defending any action brought in connection therewith, or in obtaining any and all releases, or in enforcing any of the agreements herein contained with refence to said bonds.”
. On February 24, 1960, Flora wrote a letter to the Surety Company in the nature of an “S.O.S.” for help. It contained these statements:
“It is in connection with personnel that we are writing you, in the hope that we may be able to solicit your aid. We have contacted our friends and acquaintances in the construction business for some possible leads for supervisory personnel, and all that they have come up with are either busy, involved in other work — or set-tied down some place and more or less retired from the construction industry into less strenuous jobs. * * *
We hope that you will interpret this letter as an urgent plea from us that you may be able to see the advantage of your making inquiries for us through your various contacts in order that we might have some supervisory personnel offered that might be available and from whom we could make a selection.”
. The agreement contains this clause:
“The Indemnitors ■will indemnify the Surety against any and all liability, loss, costs, damages, fees of attorneys and other expenses which the Surety may sustain or incur in consequence of the execution of such bonds and any renewal or successor thereof, including but not limited to, sums paid or liabilities incurred in settlement of, and expenses paid or incurred in connection with claims, suits, or judgments under any such bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or attempting to procure release from liability, or in recovering or attempting to recover losses or expenses paid or incurred, as aforesaid.”
Reference
- Full Case Name
- William WAGNER and J. A. Tretheway v. FIREMAN'S FUND INSURANCE COMPANY, Flora Construction Company, Argus Construction Company, Flora Construction Company and Argus Construction Company, a joint venture, and Mildred L. Flora, Appellees Walter W. FLORA v. FIREMAN'S FUND INSURANCE COMPANY
- Cited By
- 1 case
- Status
- Published