Citation Numbers: 204 Misc. 479
Judges: Stetjeb
Filed Date: 1/23/1953
Status: Precedential
Modified Date: 1/12/2023
The plaintiff, Amtorg Trading Corp. (hereinafter referred to as Amtorg), and one of the defendants, United States Wallboard Machinery Co. (hereinafter referred to as Wallboard), each moves for relief in the nature of summary judgment. The facts are that in 1948 Wallboard brought a suit against Amtorg. In that suit it attached a bank account of Amtorg. The latter exhausted all its remedies to vacate the attachment, and it was unsuccessful. Wallboard was required to put up a bond and it supplied an undertaking of defendant Standard Accident Insurance Co. The bond agreed to indemnify Amtorg from all damages it might sustain by reason of the attachment in the event it should recover in the action, with a limit of $8,700. The action resulted in a judgment in favor of Amtorg in the sum of $10,324 and costs. Demand and damages are alleged.
In principle a bond does not differ from any other contract in regard to its interpretation. It may, of course, be assumed that the greatest care is taken to use words whose usual meaning fairly expresses the intent of the parties. Hence, where the condition of payment is the entry of a judgment, the intent would be any regularly entered judgment in the action no matter what the facts causing it to be entered might be. As Amtorg asserts, it is not now permissible to retry the original action or to go behind the fact that it resulted as it did. Were it not for the agreement that the partial performance was to be without prejudice to the rights of either party, these considerations would dispose of this litigation.
Amtorg’s position on the partial performance is that insofar as it effected a reduction of plaintiff’s claim it was a mitigation of damages and only something that Wallboard was in any event bound to do. This is either not so or a question of fact. A party suing for a breach of contract is required to mitigate the damage but not to reinstate the contract either wholly or partially. The facts pleaded amount to more than the duty of such a plaintiff
The conclusion is that the defenses above described do constitute a defeti.se, though one rather than two as pleaded. The third defense, namely, that Amtorg never moved to reduce the attachment is not a defense. There is no obligation for it to do so.
In resisting Wallboard’s claim for judgment, Amtorg rise's an additional question. Its claim is that the agreement had reference only to those portions of Wallboard’s claim as were not embraced in the contemplated partial performance. And as it Was Wallboard’s position that even giving effect to the partial performance, it was entitled to a verdict in its favor that the agreement could not have contemplated rights in regard to the attachment bond. This raises a question of fact.
Plaintiff’s motion is granted as to the third separate defense. Otherwise denied. Defendant’s motion is denied.