204 A.2d 260
Pa.
1964

Opinion by

Mr. Chief Justice Bell,

Plaintiff brought an action of assumpsit against the City of Bradford under an agreement of indemnity. The lower Court dismissed his claim. Plaintiff appeals, although it is not clear from the record whether he is appealing from an order, or a judgment, or a decree of the lower Court, since that Court used each of these words from time to time, or interchangeably.

The Department of Forests and Waters agreed to widen, deepen and improve the East Branch of Tunungwant Creek, which runs through the City of Bradford, on condition that the City, inter alia, indemnify the Commonwealth of Pennsylvania. Thereupon the City adopted a resolution which pertinently provides: “. . . the said City Council of the said City of Bradford do hereby guarantee to indemnify, protect and save free * the Commonwealth of Pennsylvania, Department of Forests and Waters, and/or its contractors and agents jointly and severally from and against any and all claims, damages, demands, or actions in law or in eq uity resulting from any damage to property, public or private, by reason of tbe aforesaid work.”

Tbe work was so negligently done that Pascarella et al., wbo were the owners of tbe Bradford Hotel, recovered a verdict of $23,707, with interest, against a number of defendants, including Coleman, tbe plaintiff herein.

In Pascarella v. Kelley, 378 Pa. 18, 105 A. 2d 70, this Court reversed tbe verdict and judgment against all of tbe defendants wbo bad been sued by the Bradford Hotel, with tbe exception of Coleman, wbo was not a party to that appeal. Tbe relevant reason and basis for this Court’s reversal in tbe Pascarella case is contained in tbe Opinion of the Court (page 20) : “'There was no evidence definitely or even by inference pointing to tbe fact that tbe bulldozer or equipment of S. A. Whitney & Company caused tbe injury to tbe building. In fact, tbe direct evidence was that it [tbe damage to tbe Hotel] was caused by Coleman’s bulldozer . . . .”

It is highly important, as we shall see, that Coleman, tbe plaintiff herein, but defendant in tbe Pascarella case, has never paid any part of tbe judgment entered against him in tbe Pascarella case; nor has any execution been levied against him or bis property.

Tbe crucial issue in this case is whether the Resolution of tbe City of Bradford is a contract of indemnity against liability or a contract of indemnity against loss. Tbe lower Court held, and we agree, that it was a contract of indemnity against loss, and since no loss has been suffered by Coleman, no recovery can be bad by him under tbe indemnity contract given by tbe City of Bradford to tbe Commonwealth of Pennsylvania.

In Fair Oaks Building & Loan Association v. Kahler, 320 Pa. 245, 181 A. 779, the Court, quoting from Faulkner v. McHenry, 235 Pa. 298, 83 A. 827, said (page 254) : “. . . ‘. . . Where tbe indemnity is against liability there is a right of recovery as soon as a liability is incurred; where it is against loss by reason of a liability there is no right of recovery until a loss occurs .... In 16 Am. & Eng. Ency. of L. (2d ed.) 178, the rule is thus stated, “where the contract is strictly one of indemnity the indemnitee cannot recover until he has suffered actual loss or damage; the mere incurring of liability gives him no such right; but where the contract is to protect against liability, the indemnitee may recover as soon as his liability has become fixed and established, even though he has sustained no actual loss or damage at the time he seeks to recover.” ’ ”

In Wilbur Trust Co. v. Eberts, 337 Pa. 161, 10 A. 2d 397, the Court construed an indemnity agreement which is very similar in its language and coverage to the resolution of the Council of the City of Bradford. The Court said (page 167) : “. . . the distinction between an indemnity against loss and an agreement of guaranty or suretyship, to answer for another’s default, is a substantial one and is firmly imbedded in our law. Here appellees obligated themselves to ‘save, keep harmless and indemnify ... of and from all actions, costs, damages, losses . . .’. The language of the bond is that of indemnity, not suretyship. . . .” Accord: Burke v. North Huntingdon Township, 390 Pa. 588, 136 A. 2d 310 (footnote page 598); Emery v. Metzner, 191 Pa. Superior Ct. 440, 445, 156 A. 2d 627, 630; 2 Williston on Contracts (Rev. Ed.) §402, p. 1157, §403, p. 1159; cf. also: Pittsburgh’s Petition, 243 Pa. 392, 398, 90 A. 329.

Order affirmed, without prejudice to further proceedings by Coleman, if loss occurs.

Mr. Justice Cohen concurs in the result.

Notes

*

Italics throughout, ours.