191 Pa. Super. 440 | Pa. Super. Ct. | 1959
Opinion by
This appeal relates to the interpretation of a contract of indemnity.
On April 17, 1950 B. Irwin Emery and Margaret R. Emery leased from Maurice A. Yorkin et ux. et al., hereinafter called original lessors, three lots of ground on which was erected a building, for a term of 10 years, the lease containing a privilege to assign the same to Main Buick, Inc. In accordance with that privilege the lease was assigned to Main Buick, Inc. oh May 1, 1950. Prior to March 19, 1952 B. Irwin Emery and Francis I. Albert were stockholders in Main Buick, Inc. On that date Emery sold his stock therein to Albert D. Metzner. On September 16, 1953, Main Buick, Inc. made a partial assignment of said lease to Alvin Chiri for a term of three years with the privilege of renewing the same for another additional period of three years. Chiri was to pay the rentals directly to the. original lessors. The renewal privilege in the said lease provided that the said Alvin Chiri was to give notice of his intention to exercise that privilege to Main Buick, Inc. 90 days before the expiration of the said original term of three years. It also provided for a 10 per cent increase in rental, the differential to be paid to Main Buick, Inc. . Alvin Chiri did. not
Procedurally, this case was before the court below on the motion of the original defendants for judgment on the pleadings. The plaintiffs, B. Irwin Emery and Margaret R. Emery, his wife, filed their complaint against Albert D. Metzner and Dora Metzner, his wife, and Francis I. Albert and Margaret J. Albert, his wife. The original defendants filed an answer to the com
The covenants in a bond should be construed to mean what the parties intended in so far as that intention can be ascertained by the words used. If, however, the language is not free from doubt, then the circumstances surrounding the making of the bond and particularly the purpose for which it was given, should be taken into account: M. and M. B. & L. Assn. v. Willey, 321 Pa. 340, 344, 183 A. 789; Barratt v. Greenfield, 137 Pa. Superior Ct. 310, 313, 9 A. 2d 188; Krewson v. Erny, 158 Pa. Superior Ct. 380, 383, 45 A. 2d 240.
The showing of an actual loss is a prerequisite to recovery on an indemnity bond: Mowry v. McWherter, 365 Pa. 232, 74 A. 2d 154; M. and M. B. & L. Assn. v. Willey, supra.
In the present case there is some ambiguity in the language used in the indemnity agreement. The words “in accordance with the terms of said lease” (Emphasis supplied) found in the next to the last paragraph of the indemnity agreement might refer to the original 10-year lease or to the sublease with Chiri. We should, therefore, consider the circumstances surrounding the execution of the indemnity agreement as we may gather them from the pleadings and the exhibits
The Emerys, in paying the rents for the months of June to November, 1957, inclusive, as well as the insurance and taxes which fell due during that period, could not be considered as mere volunteers because they were obligated to pay the original lessors under the 10-year lease, which did not expire until April 17, 1960. Having paid, they were entitled to be reimbursed under the indemnity agreement which was given, in our opinion, to cover just such a situation. Our disposition of this phase of the matter, however, is not intended to prejudice any rights which the original defendants may have against the additional defendant in this or any other action they may care to institute. If
Judgment reversed and here entered for the appellants, B. Irwin Emery and Margaret R. Emery, his wife, against Albert D. Metzner and Dora Metzner, his wife, and Francis I. Albert and Margaret J. Albert, his wife, the appellees, in the sum of fl,238.92 with interest from November 1, 1957.
“Indemnity Agreement
“Whereas, Main-Buiek, Inc. was the Assignee of a Lease on a certain lot of ground together with buildings erected thereon in the Borough of Burgettstown, Washington County, Pennsylvania, in which B. Irwin Emery and Margaret R. Emery were the Assignors and the original Lessees, and
“Whereas, the said B. Irwin Emery and Margaret R. Emery are liable to the owners of said lot of ground and buildings erected thereon for the payment of said rentals, and
“Whereas, Main-Buick, Inc. desires to assign, set over and transfer unto Alvin Chiri the said lease for a term of three (3) years with certain options granted therein for an additional term, and
“Whereas, Eraneis I. Albert and Margaret J. Albert are Stockholders in Main-Buiek, Inc., and Albert D. Metzner is a beneficial owner of stock in Main-Buick, Inc., and Dora Metzner is the wife of the said Albert D. Metzner, and they are desirous of having the consent of B. Irwin Emery and Margaret R. Emery to the making and executing of a sub-lease and/or assignment of lease for said premises for a portion of a term with an option for an additional part of the term.
“Executed by the undersigned this 21st day of September, 1953.
(s) Francis I. Albert (Seal)
(s) Margaret J. Albert (Seal)
(s) Albert D. Metzner (Seal)
(s) Dora Metzner (Seal)
Witness: (s) R. W. Peacock”