239 Mass. 341 | Mass. | 1921
In National Surety Co. v. Nazzaro, 233 Mass. 74, where the facts are reported, it was decided that it could not be ruled as matter of law that by providing a recognizance for the release of McKenna the surety company had complied with its obligation to execute a bail bond for his release, thereby entitling it to recover on the contract of indemnity. It was further decided that it was a question of fact whether Blume was the agent of Nazzaro and authorized to bind him by substituting a recognizance for the bail bond and another surety for the surety company.
At the second trial the cases were tried by a judge without a jury, and by agreement of the parties the stenographic notes of the evidence at the former trial, together with the exhibits were admitted, it being agreed that such evidence might be considered .as though offered by witnesses at the trial; in addition Nazzaro
The judge found that Blume was the agent of Nazzaro in procuring the release of McKenna by bail or recognizance; that the terms of the agreement were performed by entering into the recognizance for the release of McKenna; that under the statutes of Connecticut, recognizance and bail are interchangeable terms, and by the law of Connecticut a contract to furnish bail is performed by furnishing a recognizance. He further found that Crandall in all matters acted as the agent of the National Surety Company; that the surety company executed the bail bond as described in the indemnity agreement, which bond was refused by the clerk of courts, who required bail in the form of a recognizance; and that the forfeited bail or recognizance was paid by the National Surety Company.
The indemnifying clause of the bond upon which reliance is placed in this action is that Nazzaro will “ indemnify and keep indemnified the company, and hold and save it harmless from and against any and all damages, loss, costs, charges and expenses of whatsoever kind or nature, including counsel and attorney’s fees, which the Company shall or may at any time sustain or incur by reason or in consequence of having executed said instrument; and . . . will pay over, reimburse and make good to the Company ... all sums and amounts of money which it or its representatives shall pay or cause to be paid or become liable to pay on account of having executed said instrument and on account of any damages, costs, charges and expenses of whatsoever kind or nature. . . which the company or its representatives may pay, or become liable to pay by reason of having executed said instrument, or in connection with any litigation, investigation or other matters growing
In Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, at page 174, it was said: “ Where a contract is made with a purpose by the parties to it that it shall be performed in a particular place, its validity and interpretation are to be determined by the law of the place where it is to be performed. It-is made with a view to that law.” See also American Malting Co. v. Souther Brewing Co. 194 Mass. 89. “ According to the great preponderance, if not the uniform concurrence, of authority, the general rule, [is] that the nature, the obligation and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view.” Gray, J., in Liverpool & Great Western Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 458. Carnegie v. Morrison, 2 Met. 381, 397. The indemnity bond was made in Massachusetts, to be executed here, and action on it is brought in our courts. But its purpose was to indemnify the surety respecting the main contract to be executed, delivered and performed in Connecticut. The main contract is described as a “ bail bond.” If this term is interpreted according to the law of this Commonwealth, it means one thing, a thing which is impossible under the law of Connecticut. If the term is interpreted according to the law of Connecticut, it means the furnishing of an obligation designed to accomplish the desired end, viz., the release of McICenna. The purpose of the parties, to be inferred from the
The law of Connecticut was a question of fact., Electric Welding Co. Ltd. v. Prince, 200 Mass. 386. On the evidence in the case it could be found that the law of Connecticut was different from the law of this Commonwealth, and that by the law of Connecticut “ bail ” and “ recognizance ” are synonymous terms and used interchangeably. It being further found that Blume was the agent of Nazzaro in procuring the release of McKenna by bail or recognizance, National Surety Co. v. Nazzaro, supra, and that the surety company through its agent Crandall, having entered into a recognizance for the appearance of McKenna, performed its agreement with Nazzaro and, having paid the forfeited recognizance on McKenna’s default, was entitled to recover.
There was evidence to support these findings. It was agreed that Crandall acted for the surety company in entering into the recognizance for McKenna, and thereafter received a bond from the surety company, indemnifying him from all loss by reason of his becoming surety; and there was evidence that Blume assented to Crandall’s becoming surety and acted as Nazzaro’s agent in securing the release of McKenna by the recognizance furnished by Crandall. On these facts the surety company made out its case and is entitled to recover.
The judge gave the surety company’s seventh request for rulings of law, “ That the giving of a recognizance for McKenna was a ‘ matter growing out of or connected therewith,’ the execution of a bail bond.” The written contract on which the surety company relies and upon which it must recover, provided that the company had signed the bail bond for the release of McKenna,
We find no error in refusing the requests of Nazzaro, nor in the rulings given.
In the case of Nazzaro v. National Surety Co. the exceptions are overruled. In National Surety Co. v. Nazzaro, in the opinion of a majority of the court the exceptions are overruled.
So ordered.