228 F. 181 | 2d Cir. | 1915
“(5) That the undersigned [Heffron & Co.] will at all times indemnify and keep indemnified the company and save it harmless from and.against all claims, demands, liabilities, costs, charges, and expenses of every kind or nature, which shall at any time be made or which it shall at any time sustain or incur, and will pay over, reimburse, and make good to the company, its successors and assigns, all sums and amounts of money necessary to meet every claim, demand, liability, cost, charge, expense, suit, order, decree, judgment, and adjudication against it by reason of the execution of the bond or undertaking herein applied for.”
At the same time Heffron & Co. and the Surety Company entered into another written contract by which the former agreed to deposit the $10,000 in a bank to be drawn out only upon checks countersigned by the Surety Company. The money was so deposited in the Marine National Bank. Shortly afterwards Heffron & Co. asked permission of the Surety Company to transfer the deposit to the Buffalo Loan & Trust Company on the same terms. The agent of the Surety Company countersigned the check to enable this change to be made and gave it to Heffron, who deposited the money without requiring the countersignature of the Surety Company and drew out $6,000 of it.
The Anger Company having been adjudicated a bankrupt, the Surety Company filed proof of claim upon the note. The trustee objected to the proof on the ground that the proceeds of the note had been wrongfully diverted by Heffron & Co. and that the Surety Company was not a bona fide holder for value; also on the ground that under no cirumstances could it prove for more than $1,000, the actual amount of its claim. The referee and District Judge sustained the proof, and this is a petition to revise the order.
The first question is whether the collateral was meant to secure only the return of the $6,000, or also the expenses to which the Surety Company was put in connection therewith. The two agreements made between the parties constitute hut one contract. If the Surety Company had sued, it would certainly have been not only for the $6,000, but also for the expenses. We think the collateral was given to secure the payment of its whole claim, which included both accounts.
The order is affirmed.
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