Iowa Bonding & Casualty Co. v. Wagner Co.

Evans, J1

I. In November, 1917, the Wagner' Company was awarded a paving contract, known' in the record as the “Douglas Avenue Contract,’.’ in the city of Des Moines. It thereupon applied to the plaintiff Lion Bonding & Surety Company to,insure its performance of its contract... Such plaintiff issued its bond accqrdingly. This suit is. brought upon the breaches of such bond by the Wagner Company. The Lion Bonding & Surety' Company reinsured' one half the risk with the Iowa Bonding & Casualty Company, its coplaintiff. ' The total loss sustained under the insuring bond was somewhat moré than $14,000. This was borne equally, in the first instance, by the two plaintiffs.' The' insuring contract issued by thé' Lion Bonding & Surety Company required the applicant to furnish indemnitors'. ;The Empire Construction Company’ (a corporation) and the Raymond Wright■ Company (trade name) were named as such indemnitors, and they indorsed the application of the Wagners as such indemnitors; There is some dispute between the parties as to whether the liability of these latter was secondary or primary, the plaintiffs contending that they were principals to the contract, and were in no sense sureties or indemnitors.' We think that the contract-entered into- and the -written application pursuant to which the contract was •entered into -by the plaintiffs-aré quite’conclusive on that questiom If we turn to the application, the answer to Interrogatory 1 shows the -Wagner Company as sole applicant.- The answer to Interrogatory 22 names the Empire' Construction Company and the R. H. Wright Company as indemnitors. • -The Wagner Company’ purported to sign the application.as “applicant;-’ No such designation was attached to any other signer. The Raymond H. Wright Company appended- to the contract the following statement, over its signature* -We hereby join in the above indemnity agreement.” > For the purpose-of-further discussion, therefore, we shall treat the’ Wagner - Company as the principal applicant for the insurance, and-the-other two signers as indemnitors.' It appears that Charles W. Wagner was the principal owner of the Wagner Company, and the identity-of- the -two-entities-has been quite merged-in this-record. We shall, therefore,-make no distinction between them. Wagner and his. corporation-became insolvent while-owing a-large indebtedness arising out of the performance of -the “Douglas Avenue Contract.” Negotiations were entered1 into ’between him and his insurer, the Lion Bonding & Surety Company, whereby it was sought to: reduce the loss resulting to the -insurer to the lowest possible amount. A-written agreement was. entered into, whereby Wagner turned over-to the insurer all the'-property which he -had, reserving only certain tools and implements, - but including corporation stock; and choses in action-and "certain benefits already accrued from executory paving ' contracts in course of performance. It-was- further provided-that Wagner should pay the sum of $5,500 to his insurer. -This- contract was fully performed-by Wagner. In order-to perform the-same, it was requisite that'he mortgage his homestead, for the-purpose of borrowing the amount necessary to make the cash payment. One.of the inducements which operated on both parties was that Wagner.:was otherwise .contemplating bankruptcy proceedings. This is the contract that is pleaded in defense. The Lion Bonding •& Surety Company joined with its coplaintiff in this action. But the • testimony of its official who negotiated the agreement with Wagner tended strongly to support the defense. The Lion Bonding & Surety Company has not joined in the appeal to -this court,' and. we have, therefore, no occasion to further consider, .the defense pleaded as against it.. The Iowa Bonding .& Casualty Company will hereinafter bé referred to as'plaintiff.

The whole controversy,, .as between the plaintiff and the defendant, centers upon the validity, of the .defense pleaded. The contentions of the plaintiff in that regard are; (1) That the contract .entered into was not binding upon it, because .it was •not a party thereto; (2) that .the Lion Bonding & Surety Company- had no authority to .represent it, or to.- bind it to the. contract thus entered into; (3). that, though the contract were deemed effective to release Wagner from further liability, it was -not effective to- release the indemnitors. •

The third and. fourth paragraphs of the insurance contract are as follow's:

“Third: That in the event said company executes said,bond, or bonds, with cosureties, .or reinsures any portion of said bond or bonds with' reinsuring companies, .or procures, the execution of said bond or bonds, the undersigned agrees, that- all of the terms and conditions of this agreement shall apply, and operate ■for the benefit of the company-, the procured surety, the co-sureties, and. such reinsuring companies as their-interests, may appear.- •• ' - . ■ . ■

“Fourth: That the undersigned, in further consideration of the company becoming surety as above,- does hereby covenant and agree-to -indemnify the- said company and save it wholly harmless against all -loss, costs, damage," charge and expense that may- accrue to it, whether sustained or incurred by reason of any act, default, or neglect of the undersigned, or on account of claims made under or in connection with the said bond, or any extension-or continuation thereof, hereby, agreeing to- repay to the said company all such loss, cost,' damage, charge and expense, including the fees and compensation -and expense of any of all attorneys and agents employed by it to investigate or adjust such claims.”

The plaintiff relies upon the foregoing as constituting a distinct contract between itself and the insurer. The argument is that Paragraph Third was effective to'create an independent contract between the reinsurer and the insured, and that the rights of the reinsurer thus created could not be impaired by any arrangement between the insured and 'his insurer. On the other' hand, the contract of reinsurance entered into between the. plaintiff and the Lion Bonding & Surety Company contained the following section:

“Section 5. The reinsured shall take charge of all matters arising under the bond. It shall decide whether or not it is liable thereunder, and shall determine the amount of its liability in case it decides- that it is liable. It shall settle or compromise any claims, and defend, settle or compromise any suits, and take such other action, not involving the extension of credit or the advancing of money,' in connection with any claim máttér arising under the bond, as it may deem advisable. Any such decision, determination, settlement, defense,' compromise, or other action of the reinsured in connection with any claim mat-' ter arising under the bond shall be final and conclusive and unconditionally binding upon’the reinsurer;- provided that no payment or other method of’ settlement by the reinsured shall preclude the reinsurer from showing that the alleged liability or any part thereof for loss under the bond exists or existed ’under any other bond or bonds given at any timé by the reinsured.”

The-contention for the appellees is that, by virtue of this contract of reinsurance, full power was conferred upon the re-insured company to represent the reinsurer, as well as itself, in matters of controversy as defined in such Section 5. We do not think that the reinsuranee contract had the effect either to multiply or' to divide the contract of the original insured.' His liability continued as a single liability, arid the risk carried by the insuring companies continued as a single risk. True, profit or loss was to be divided between them, but that was a matter wholly between themselves. It could not have the effect of splitting the' cause of action, if any, against the insured,’ or the cause of action, if any, in favor of his creditors. Paragraph Third above quoted contains nothing that-necessarily runs counter to this, holding. The practical purpose and operation of this Paragraph. Third-may be -illustrated as follows: Suppose there had been no settlement with Wagner, and that the Lion- Bonding & Surety Company had sued him and his indemnitors for. $14,000, being-the-amount of the loss sustained by the insurer. The defendr ants could not, in such a case, contend that, because of reinsurance, the Lion Bonding & Surety Company had sustained a loss of only- $7,000, and not $14,000, . Paragraph Third means that the liability .of the indemnitors continues for the full, amount of the loss, regardless of whether it..was borne by the. original insurer or by reinsurers. It does not create' an independent cause of action in favor of each separate reinsurer, nor does it .render it necessary that reinsurers should be joined as plaintiffs with the original insurer. ■ The Lion Bonding & Surety Company .ha,d a right at all times to- maintain an action in its own name for the full amount of the loss, without naming-the reinsurer, and without. being subject to defense. on the ground that a reinsurer had borne part of the loss. - We reach, the conclusion that,, in the negotiations and contract between the Lion Bonding & Surety Company and Wagner, it must be considered as representing the insurance which it contracted to give, regardless of whether.it had reinsured its loss or not. And this is the real purport of Section 5; which we have quoted above. Under this contract, the right of one company can rise no higher than that of the other, nor can the liability of one for a loss be any greater or-less than that of the other. Whatever is done by the insurer in his negotiations with the insured -operates, as a matter of law, both to the burden and to the benefit of the other. The insured is not bound to seek out reinsurers and to obtain their independent consent to adjustments and negotiations which he would otherwise be entitled to carry on with the party with whom he contracted. We hold, therefore, that the contract entered into by the Lion Bonding & Surety Company was as binding upon the plaintiff as it was upon itself. It maybe further, added that .the plaintiff took the full benefit- of the contract, and that such, benefit could not have inured to it without the contract and its performance by Wagner. Though, therefore, the plaintiff-has in -terms purported to repudiate, the. contract, it has in fact clung to its benefits, and has tendered no rescission.'

II. It is urged by plaintiff that, even though, the contract in question were effective to release Wagner, it does not follow • that it is effective to release'his indemnitors'. In support of this contention, it suggests the analogy that, if Wagner had gone into bankruptcy,' aild had been discharged, such discharge would not operate to release his sureties upon any obligation. It argues, therefore, that a contract of release could have no other or greater effect than a discharge in bankruptcy. ’ This presents a non sequitur. The fact that .the discharge of a principal in bankruptcy does not. operate to release a surety furnishes no ground for saying that a contractual release of a principal is likéwise ineffective to release a surety. The law is well settled otherwise. The general rule is that a surety may' set up any defense that is available to the principal. If the plea of a discharge in bankruptcy is to be regarded as a defense, then the most that can be said is that it furnishes an exception to the general rule. Indeed, a discharge in bankruptcy is not strictly a defense to the cause of action. It may well be regarded as simply a legal bar to any remedy.' Be that as it may, the fact remains that any valid contract entered into with the principal which operates-to his release: from' liability ■ operates in like •manner in favor of: his sureties. . ¡ 1

The judgment below must, accordingly, be affirmed.&emdash;Af firmed.

De Brake, C. J., and Albert and Morling, JJ., concur.