National Surety Co. v. Portnoy

Wait, J.

This is an action against an indemnitor to recover the amount paid by a surety in compromise of a suit upon a bond. The only question presented by the report is whether certain evidence was excluded wrongly.

The agreement for indemnity signed by the defendant provided that the plaintiff, as surety upon the bond, obtained in part through the indemnity agreement, was authorized “To . . . compromise any claim, demand, suit or judgment upon any such bond or bonds, unless the indemnitors shall request such surety ... to litigate such claim . . . and shall, simultaneously with such request, deposit with such surety . . . collateral satisfactory to it . . . .” The defendant sought to introduce evidence in regard to the circumstances attending the compromise. On objection, the judge ruled that it was inadmissible, unless the defendant was prepared to show that a demand for defence had been made and, simultaneously, collateral had been deposited with the surety. This the defendant was not prepared to do; but he made an offer of proof, in the form of testimony taken by the judge in the absence of the jury. Nothing more appears in this evidence than that an attorney acting for this defendant and others appeared in the suit on the bond and *331 took a watching part in some of the proceedings; that the surety knew that the defendant wished that action defended; that no collateral was offered to the surety or requested by it, that in the voluntary absence of the defendant and his attorney from sittings of the auditor, the surety arranged a compromise.

There is nothing in the defendant’s contention that such evidence either justifies a finding that the terms of the indemnity agreement requiring collateral as a condition of any limitation on the surety’s power to compromise, had been waived, or requires submission of the evidence to a jury. In deciding upon the question of admission, the judge had power to pass both on law and fact. Coghlan v. White, 236 Mass. 165, 167 .

We see no error or abuse. His ruling excluding the evidence was right. The order must be in accordance with the stipulation, Judgment for plaintiff in amount agreed.