Hasbrouck ex rel. Clow v. Carr

Citations

• 19 N.M. 586

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. A surety company having executed a bond for the benefit of sub-contractors, laborers and material men, received a contract of indemnity from the principal contractor and one Carr, providing that they would at all times indemnify and save the surety harmless from and against every claim, demand, judgment, etc., and that they would place the surety in funds to meet every claim, demand, judgment, etc., against it by reason of such suretyship and before it should be required to pay thereunder. Held, that the contract was one of indemnity solely, and, in a suit against Carr, for the benefit of the creditors of Anson, no recovery could be had, where it appeared from the complaint and answer that the surety company was insolvent; that it had no assets; that it had paid no part of such judgments and could not be required to pay, by reason of its insolvency.</p> <p>P. 594</p> <p>2. Where the security is given by a stranger-and is merely personal to the surety, and cannot be construed as a pledge for the security of the debt, if the surety is discharged from liability the creditor can not afterwards take anything by subrogation to his rights. If, on the other hand, the security is a pledge for the payment of the debt as well as a personal indemnity for the surety, the discharge of the surety will not deprive the creditor of a claim on the security for the payment of the debt.</p> <p>P. 595</p> <p>3. Where a stranger undertakes to indemnify a surety and the surety thereafter becomes bankrupt so that it cannot pay any of its suretyship obligations and is dissolved and its corporate capacity and right to do business terminated, the legal representative of such surety cannot enforce the indemnity, because such surety lost nothing and was not damaged, and cannot be damnified.</p> <p>P. 596</p> <p>4. An indemnitor is a person who indemnifies, and to indemnify is to “save harmless, to secure against loss, damage or penalty; to make good to; to rei