62 Cal. App. 2d 891 | Cal. Ct. App. | 1944
Plaintiff, having sustained a loss upon two broker’s bonds, brought this action against the indemnitors upon certain indemnification agreements given to plaintiff at the time of the issuance of said bonds in 1929 and 1930. The action resulted in judgment in favor of plaintiff and against defendant Neil E. Larkin in the sum of $8,656.11. Said defendant appeals from said judgment.
The sole contention on this appeal is that the action was barred by the statute of limitations (Code Civ. Proc. 337, subd. 1). It is therefore necessary to set forth the pertinent portions of the indemnification agreements and the chronological sequence of events.
The indemnification agreements provided in part that the indemnitors agreed “to indemnify the Company from and against any and all liability, loss, costs, damages, attorneys’ fees and expenses, of whatever kind or nature, which the Company may sustain or incur by reason, or in consequence of executing said bond or bonds as surety, . . . and which it may sustain or incur ... in defending . . . any action, suit or other proceeding which may be brought in connection therewith . . . and obtaining a release from liability under said bond or bonds; and to indemnify the Company to the full amount of liability, loss, costs, damages, attorneys’ fees and expenses as aforesaid, regardless of any reinsurance that may be carried on said bond or bonds. ...”
Upon default by the broker, three persons instituted actions in Placer County in 1932 against the broker and against the plaintiff herein upon its broker’s bonds. On March 10,
In support of his contention, defendant argues that the agreement provided for indemnity against “liability”; that “liability” was incurred by plaintiff not later than March 10, 1932; that plaintiff could have brought an action against defendant on the indemnity agreement at any time after said date and even prior to the actual payment of any loss (Easton v. Boston Investment Co., 51 Cal.App. 246 [196 P. 796]; Thomas v. Layer, 48 Cal.App. 199 [191 P. 949]), and that as this action was not brought until August 30, 1939, being more than four years after March 10, 1932, the action was barred. In reply, plaintiff argues that the agreement provided for indemnity against “loss” and “damages” as well as against “liability” and that as the action was filed within four years after the loss and damages had been sustained and paid, the action was not barred (Oaks v. Scheifferly, 74 Cal. 478 [16 P. 252]).
In making these arguments, the parties discuss the authorities which distinguish between an agreement to in
Defendant states that he “must admit that if it were not for the exceedingly bad reasoning of this case (the Oaks case), it might be taken as decisive of the correctness of the lower court’s decision here.” While we cannot agree with defendant in his criticism of either the rule or the reasoning in the Oaks case, this court would be bound, in any event, by the decision in that case and we are of the opinion that said decision is decisive of the only point raised on this appeal.
The judgment is affirmed.
Nourse, P. J., and Sturtevant, J., concurred.