United States Fidelity & Guaranty Co. v. Smith

The respondent recovered judgment for $423.75 against the defendant for attorney fees and costs expended by respondent in defending a certain action at law prosecuted against it by reason of having become surety upon a bond given by appellant to the creditors of Force-Hewitt Company for the faithful performance of his duties as trustee for said creditors. The execution of "the bond was admitted by the answer. The execution of the application for the bond was denied on information and belief only. It was presumptively in his knowledge and could not be so denied (Curtis v. Richards, 9 Cal. 33, 38 ), although it was evidently treated at the trial as sufficient. The trial court’s finding No. 3 describes the covenant upon which defendant’s liability in this action is founded as follows: “That it is true that in the application for said bond and undertaking executed by said J. L. Smith, it was agreed in writing among other things, that the defendant, J. L. Smith, would indemnify and save the plaintiff harmless from any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind or nature which the said plaintiff shall have or may for any cause at any time…