Cleary v. Fid. & Cas. Co. of N. Y.

Ohio Court of Appeals

Cleary v. Fid. & Cas. Co. of N. Y.

163 N.E. 628, 29 Ohio App. 425, 6 Ohio Law. Abs. 185, 1928 Ohio App. LEXIS 605

CourtOhio Court of Appeals

DecidedJanuary 3, 1928

Docket3104

StatusPublished

This text of 163 N.E. 628 (Cleary v. Fid. & Cas. Co. of N. Y.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cleary v. Fid. & Cas. Co. of N. Y., 163 N.E. 628, 29 Ohio App. 425, 6 Ohio Law. Abs. 185, 1928 Ohio App. LEXIS 605 (Ohio Ct. App. 1928).

Pincite

Opinion

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

Clause 1 was construed by the trial court to mean that the indemnitor should, within thirty days, pay to the Casualty Company the premiums that it charged for entering into the contracts with the Cleary-White Construction Company arid Cleary and Dubia. In order to arrive at such a conclusion the court, either directly or by construction, must have read into the first clause of the contract, some such words as “all premiums and renewals on premiums due to The Fidelity & Casualty Company of New York from The Cleary-White Construction Company and from Cleary & Dubia.”

The law is that, in construing a contract, other words cannot be read into, or added, nor can any be taken away by construction.

This action is based on a written contract.

It- is argued that, as there were several surety bonds to be executed by the Casualty Company, that a definite amount could not be inserted in the blank. That may be true, but simple words showing what payments were to be guaranteed would have been sufficient. The parties are bound by their contract. The Court will not make one for them. The Casualty Company cannot recover on the contract sued on this case.

The judgment of the court below will be reversed and judgment will be entered here for the plaintiff in error.

(Hamilton, PJ. and Mills, J., concur.)

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OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

Clause 1 was construed by the trial court to mean that the indemnitor should, within thirty days, pay to the Casualty Company the premiums that it charged for entering into the contracts with the Cleary-White Construction Company arid Cleary and Dubia. In order to arrive at such a conclusion the court, either directly or by construction, must have read into the first clause of the contract, some such words as “all premiums and renewals on premiums due to The Fidelity & Casualty Company of New York from The Cleary-White Construction Company and from Cleary & Dubia.”

The law is that, in construing a contract, other words cannot be read into, or added, nor can any be taken away by construction.

This action is based on a written contract.

It- is argued that, as there were several surety bonds to be executed by the Casualty Company, that a definite amount could not be inserted in the blank. That may be true, but simple words showing what payments were to be guaranteed would have been sufficient. The parties are bound by their contract. The Court will not make one for them. The Casualty Company cannot recover on the contract sued on this case.

The judgment of the court below will be reversed and judgment will be entered here for the plaintiff in error.

(Hamilton, PJ. and Mills, J., concur.)

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Bluebook (online)

163 N.E. 628, 29 Ohio App. 425, 6 Ohio Law. Abs. 185, 1928 Ohio App. LEXIS 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-fid-cas-co-of-n-y-ohioctapp-1928.