*1 AusplüND Indemnity Co. JStNa v. Argued rehearing August, 27 June, decided 17 denied 28 1905. July,
AUSPLUND v. ÆTNA INDEMNITY CO.
81 Pac.
“The Company,
Hakti'Okd, Conn. we, J. these W. Higgins, Know all Men by presents, and The Portland, Or., Indemnity of principal, ./Etna under the and existing created corporation Company, Connecticut, office of and whose principal laws State Hartford, C-onn., are held and as surety, firmly is located v. ADtna unto Portland, bound Octavia Or., full Ausplund, sum of just hundred and dol- twenty-three forty-six lars, and lawful money United States of Amer- good ica, sum, well and payment truly made, said himself, heirs, binds execu- principal tors, administrators, itself, and the said binds its successors and assigns, jointly severally, firmly by sealed, these Signed, and dated 26th presents. day June, a. d. 1902.
Whereas, the said has entered into a certain written with Octavia date of Ausplund, bearing 21, 1902, June in substance as follows: being practically To erect and finish and in consideration of faithfully the sum of hundred and twenty-three forty-six ($2,346.00) residence, dollars basement .frame situate two-story 289, on the west half of lots 3 and block in Hawthorne Park, Portland, City Or., conformable to the draw- owner; made said work to ings specifications November, on or before the 1st day completed *3 Now, Therefore, condition of the foregoing obliga- well, tion is such that if said shall and principal truly terms, with all the covenants and con- faithfully comply ditions of said contract on his to be and part kept per- tenor, formed to its then this shall according obligation void; in full and be otherwise remain force effect.
This bond is issued subject following provisions Provided, the said shall that be notified writ- surety of act on the of the said his any ing principal, agents or said involve a loss for which the employees, may hereunder, after the immediately surety responsible occurrence of such act shall come have knowledge authorized or fully representative representatives shall of Octavia who have Ausplund, supervision contract, and a letter of said registered completion office of & mailed Clemens O’Bryan, managers Portland, Or., the AStna at shall be Indemnity Company, of this bond. deemed sufficient notice within meaning Provided, fail to that if the said shall comply principal to such an that all the terms of said contract extent forfeited, then shall same shall be said surety said contract and to sublet to assume right privilege ÜStna elect to same, said may whichever surety or complete with said contract. do, it is done accordance Further, breach any Provided event bond, shall subrogated of this said surety conditions of said principal arising to all the rights properties deferred, and contract, and all any of said payments out at that time said moneys and all due principal credited claim any of said contract shall be upon virtue make said surety the said Octavia Ausplund” of said breach. because Further, at
And suits law proceed- Provided bond to recover any ings equity brought six months be instituted within claim must thereunder first breach of said contract. after the shall not Further, And that the said surety Provided for a sum than hundred twenty-three be liable greater account dollars because of or on forty-six ($2,346.00) of this bond. assured or
And superintend- Provided Lastly, to said notice before ent of the work must due surety give referred to is last under the contract herein payment otherwise, this shall be made to the principal; obligation hereunder. void as to surety any liability set Whereof, In the said has hereunto Witness seal, these his and the said has caused hand fact and executed attorney presents signed Or., Portland, at first above.” written day year It is the erection then commenced alleged for the materials used but failed building, in the construction thereof when the several claims there- 20, 1902, matured, and October notified about in this respect, neglect *4 her that as- informed would company whereupon contract, and to make to it sume her Higgins’ requested all of due or to him under the money accruing payments that of such demand plaintiff agreement; pursuance made all due thereafter money Higgins payments full con- the contract to which assumed corporation, IndemNity v. ACtNa trol it; that the contract completed entered into with that the last provided payment due him thereunder made when the house was and the thereof completed possession delivered plaintiff liens; free of that after the assumed such control received due under money con- tract certain liens for materials furnished to permitted be used in the erection of the house to be filed the office Clerk of Multnomah County out a County, setting thereof, and list the several sums demanded stating lien claimants. It is also that suits were respective alleged such liens, instituted foreclose and before the duly day the several therein had answering complaints expired notified the pendency suits, it to such settle or defend same; requested had in such were the several suits that proceedings 19, 1903, on were decrees rendered therein for the April lien claimant; sums demanded each pursuance real such decrees was offered for she, sale, 1903, was com- May prevent $624.50, due, sum no of which has pelled pay ; to her “that had ever no means repaid ascertaining claims for what material furnished and used in the erection of said residence defendants had failed until she was served with the summons in suit, and thereafter said fees costs to attorneys’ became which said lienors entitled could be deter- only mined the decrees said foreclosure suit.” Co., defendant, ADtna alone answer- denied allegations ing, complaint, for a further defense averred undertaking executed consideration. For a without sec- question ond it is defense alleged
that suits at law to recover sum due under the bond six should be commenced within months the first *5 AusplüNd v. JEtNA INDEMNITY Co. ; under such that agree- of the contract breach question on or ment complete plaintiff’s Higgins 1, 1902; failed to there- that he comply before November on that and that with, a breach occurred day; whereupon until commenced expiration this action was not As from than six months November of more defense, setting third it is averred undertaking, clauses, describes the only and condition out the preamble became a ever to which house constructed every plaintiff’s party; Higgins was not completed specified, except particular does not claim and that on the day prescribed; on account of such For fourth de- any delay. damage it is never at fense alleged or for or used time ordered any any purchased house. And thereof construction of fifth defense it is stated that this action was not com- as a more than six months menced until after the expiration after each of such liens wás filed. defenses,
A demurrer to the several on the separate that neither of stated facts sufficient to con- them ground sustained, stitute a defense been a trial was had in ac- without a the court of fact making jury, cordance with the allegations complaint; for the sum de- thereon judgment having given Apeikmed. manded, the JEtna Co. appeals. the name of Platt For there was brief over appellant Platt, Mr. Harrison Platt. & an oral Gray argument by names of there a brief over the
For respondent Boise, Seton, McKee, and John T. Waldemar Lyon Whitney McKee. Mr. Boise and Mr. with an oral argument of the court. Mk. Justice Mooke delivered opinion and the into between 1. The contract entered in, out made is not set expressly specifically AuspluNd v. HDtNA INDEMNITY of, because of such omission counsel that the argued by appellant’s only part *6 the of which was guaranteed by agreement bond, wit, in the is indicated the frame resi would construct Higgins dence conformable drawings specifications thereof, ; and that he with fully stipulation complied the there that the omitted parties undertaking plainly in contract that he from the clause to the effect Higgins’ in, would, at his furnish all material used own expense, on, all labor building, supply employed therefor, fin so that the house was pay promptly no liens on account of such or material could ished labor in and that as the bond be filed against property; did undertake to not indemnify plaintiff against question in she incur liability might consequence filing any real of liens her property, guaranty perform contract, except of the conditions ance Higgins’ the court such as were incorporated in evidence. erred admitting text-writer, incurred under A discussing liability : “If the main contract is says an indemnity undertaking, bond, than the limits fixed its broader scope much of so to the contract will only incorporate reference the limits of the terms of the bond”: the same as is within further Stearns, 143. This author Law of Suretyship, § a bond is limited to its “In : general, liability upon says cannot or restricted The be enlarged recitals. obligations is not only The entitled protec- parol. to written rules of evidence tion of relating ordinary of the stat- instruments, but to the additional protection can be maintained frauds, ute of no action upon whereby unless the debt of another promise promise * and the * obligee is in Where principal writing. is to secure and a bond enter into an given agreement, .¿Etna Indemnity and the bond recites some obligations performance, all, under the contract, but the liability of the main nof recitals, is where bond will be limited to Stearns, reference”: not into the bond by incorporated Suretj^ship, Law § be remembered that at bar it'will pre
In the case states when the contract between amble to the undertaking consummated, describes with the frame resi the real particularity constructed, and when the build dence to be specifies was to have been completed. stipulation ing as follows to the uncertain future bond event regard therefore, obli “Now, the consideration foregoing well, shall if the said such that truly gation terms, all covenants and faithfully comply contract on per conditions of said kept *7 tenor, to its then this obligation formed according full If the void.; remain'in force and effect.” otherwise had from the been omitted “substance words practically” for a the indemnity liability company preamble, the might breach of undertaking probably out to have been set the contract limited to purporting words, but, use of these the ; made phrase therein in the conditional clause refers undoubtedly contract” “said into between entered to the entire agreement thereof, in as stated and not the import the plaintiff, Mo. In clause. Oberbeckv. Mayer, 59 App. the preamble the that a 289, intimated is be iden an undertaking, might was by guaranteed bond, annexing date the by the by specified tified at bar the date In the case the thereto agreement. as subject-matter, spec the
contract and description are, sufficient in our opinion, ified in the undertaking, bond, in the and reference qual- identify agreement; —2 47 OR. AuspluNd INdemnity v. AStNa
ified as it is the use of the words “substance practically,” is adequate contract into incorporate the undertak- ing, thereby rendering liable for indemnity a breach of of the terms of the No error agreement. evidence, was committed admitting clause which is important as “The follows: contractor shall for all labor and materials so that’when promptly, the contract is no finished liens be filed may against on account thereof.”
2. It is maintained by counsel that the appellant’s spe cial of limitation to the period as time within which suit should have been instituted com pany, had when expired this action commenced, and hence an error was com mitted a demurrer It is sustaining answer. counsel, argued by however, that an inspection discloses that complaint alleged period spe cial limitation designated had expired this that, action was as no demurrer to begun, on that the error complaint interposed ground, of was waived. One of complained of de grounds murrer that to a is as fol interposed complaint lows : “That the action was not commenced within the time limited B. & C. Code”: 68. The rule Comp. § settled this State that where on the face of appears that the action was not commenced within the time limited Code must be taken objection demurrer, if taken, not so on that exception McBee, ground waived Pac. 818); Or. 76 (23 *8 Spaur Davis, Davis v. Pac. Hawkins Don v. 20 78 140); (25 nerberg, Or. Pac. It is how 97 possible, 908). (66 ever, that the method of of a challenging sufficiency statute to a demurrer is restricted complaint by Code, several of limitation periods regulated by does not a limitation apply agreed upon special AusplüND ÍEtNa com not that the action was that the so objection parties, first should from breach months within six menced was, answer, not de it taken, as murrer. be, remembered that the it will be
3. However facts to excuse delay tending complaint alleges and, if action, such averment in not sooner instituting no error was com for that is sufficient law purpose, defenses, a demurrer to the separate mitted in sustaining in the nature of a for the allegation avoidance, the time admitting speci confession tend had run. but facts averring fied the undertaking This of the limitation to show a waiver prescribed. ing Co., AStna Indemnity is to the effect allegation not notice that of plaintiff’s pursuance build all the materials used her for promptly paying full and control over “assumed carrying ing, complete residence,” of said out of said contract and completion thereafter made to be and that payments were due under the contract. These averments coming answer, thus the issue framed denied facts as court found the alleged complaint. sure-
4. contractual relation corporate Though loss occasioned by indemnify party tyship the same breach of an is precisely principal’s agreement with if the contract had been by private party signed like nevertheless out compensation, remuneration dam insurance offers faith, and the breach of bad caused by negligence, ages Stearns, Law of Suretyship, an agreement: § thus announced allow would probably corpo principle for a consideration furnish indemnity ration organized who, for surety, rule private to invoke the applicable friend, of a voluntarily guaranteed the accommodation If terms of his agreement. the performance *9 IndemNity v. JStNA Co. private surety, however, subrogated rights becomes to the principal undertaking, of his party, he is a which agreement, keep because of the latter’s failure to his he ought subjected to all the liabilities assumed principal, regardless original of the contractual relation. corporation becoming surety may, In words, other like private surety, by permitting to make such pleases, legal right, default as he insist its strict liability legally interpose an action to' enforce its private defense that a under the same invoke surety, circumstances; corporate but when either pursuance individual, in of the terms of performance “assumes” principal’s contract, of the by being surety, subrogated such rights prin to the cipal necessarily subject thereunder, must all become ’his liabilities. complaint alleges The after the com
pany plain assumed the of the contract the paid money becoming Higgins tiff to it the sums of due to agreement. agree under the One terms of such promptly pay ment is that should for all material plaintiff’s building, completed used in so that when was agaiiist property. no liens could be filed In the lower testimony court, had introduced her appellant’s rested, judgment counsel moved of non- suit, exception denied, saved, and an the court found that the “assumed” Higgins’ finding and it is contended that such unsupported by exceptions evidence. bill purport testimony given does not all to contain at the prior interposition trial of the motion last men tioned, and, the absence the court’s certificate that testimony incorporated transcript, all uphold will be assumed that sufficient evidencewas made. IndemNity Ausplünd v. ÍEtNA to a consideration brings question 6. This us fact, a material based *10 or not such whether rendered, issue, notwithstanding the judgment support to damages not commenced recover the action was in the undertaking. the time sustained within specified Am. Co., Iowa, (79 12 Dec. In Fire Ins. 371 Stout v. City of a me an in real 539), consisting interest property, which lien, chanic’s insured under policy was insurer maintained that no action could be after within months unless it commenced twelve was loss such fire. property property by could not be so held that of loss proof destroyed, of fore a decree made until the lien was established by in the closure, and that the policy prescribing stipulation case, In limitation was deciding special inoperative. court, “The Mr. for the says: Justice speaking BaldwiN, a me interest insured was once settled that point that the lien, chanic’s and the conditions policy the commence assured or his before assignee required, ment of suit on the to to the prove policy, of the interest that he value may insured, if done in the this cannot be ordinary pro if such in courts ceedings necessary pursued, one made in a within year cannot be legitimate way proof suit to be com loss, then this condition requiring one is rendered menced within year inoperative Co., Ins. 19 In Star themselves.” Longhurst parties in 365, in on an Iowa, a suit insurance policy given to a me loss fire subject demnity against lien, it for the chanic’s was held to be competent parties within an action limitation special provide loss; maintained after a but such on the might policy in so condition would not be enforced when necessarily interest insured as to consistent with the nature of the of due the exercise render a unobtainable recovery 22 INDEMNITY V. ÍEtNA AüSPLüND “If,” Mr. diligence. Justice says Thompson Harlan Co., v. Phenix 136 (10 Ins. U. S. Ct. 34 Sup. L. Ed. 408), in referring delay bringing action on an insurance within the time policy agreed upon “the failure to sue parties, within the time the time prescribed by policy, computing fire, from the date of the due the conduct of the it cannot avail itself limitation of company, twelve stipulate months.” The parties an action for a breach of an must be brought within a certain if such limitation is reason period, able, Wood, it will be ed.) Lim. upheld: (2 §
7. When paid due under the it was money incumbent for the corporation promptly *11 used in but, the construction of the not building; having so, done liens filed were against plaintiff’s property, amount of which just could not been de have probably termined until such liens were foreclosed. these Until rendered, decrees were not could ascertain plaintiff what sum had she been as these liens damaged, were not until foreclosed more than six months after first breach' had occurred of the terms contract, in the stipulation pre of six unreasonable, limitation months is scribing therefore inoperative. So, too, the indemnity received company, having
from due under the but failed money for used construction promptly allowed liens to filed building, waived the the under property, thereby stipulation time an within which action taking should limiting been brought. From these considerations follows the judgment affirmed, should be and it is so ordered. Affirmed. íEtNA Rehearing. On Petition fob of the court. delivered opinion Mr. Justice Moore filed, 9. A defend for a petition rehearing ant’s counsel insist that a an statement opinion case, nounced the bill of did not exceptions to contain all the at the trial purport testimony given of a motion for a prior interposition judgment nonsuit, is not A borne out record. reexamina tion of the shows that the opinion inadvertently transcript nonsuit, refers to the motion for a should have a motion for and a in defend specified findings judgment ant’s The bill of sets out certain ex favor. exceptions defendant, hibits introduced and then evidence con tains the recital: following
“That this was all the offered testimony to sustain the of her and of the allegations the iEtna pleadings, thereupon Indemnity Company., counsel, moved court for an acting order of nonsuit as follows the reasons The [stating therefor]. motion for a nonsuit is denied. Defendant allowed exception.
That case, at the close of the no more testimony having been introduced on behalf of the defendant moved plaintiff, in favor of defendant the iEtna judgment follows relied Indemnity Company [giving grounds The motion is Defendant upon]. overruled. excepts. bill settled foregoing exceptions hereby
allow7ed. Frazer,
Arthur L. *12 Judge.” The statement in the bill of after the order exceptions, nonsuit, overruling the motion for a “that at the close of the case, no more been introduced on testimony etc., behalf of does not the fact plaintiff,” negative the defendant have introduced may testimony upon are based. SORENSON V. OREGON Power Go. assumption
We to adhere announced in the former opinion, par- only respect which is corrected to the rehearing intended, ticular motion and a is denied. Rehearing Affirmed Denied. Argued 12 July, decided 15 August, rehearing denied December, 1905.
SORENSON OREGON POWER CO.