
    Cleary v. The Fidelity & Casualty Co. of New York.
    
      (Decided January 3, 1928.)
    
      Mr. Chester 8. Durr, for plaintiff in error.
    
      Messrs. Burch & Peters and Mr. 8. Geismar, for defendant in error.
   Cushing, J.

The Fidelity & Casualty Company of New York brought an action against Maurice D. Cleary on a contract of indemnity. The petition states that Cleary agreed to hold the company harmless against all claims, and to pay all costs, charges, and expenses connected therewith, and that there was due said company from the Cleary-White Construction Company $1,399.80, with interest from July 30, 1919.

Cleary’s answer was. a general denial.

The casualty company’s evidence consisted of a copy of an account between it and the Cleary-White Construction Company, a deposition, and a written contract between the parties, entered into September 24, 1917.

The pertinent part of the contract is:

“1. That the indemnitor within thirty days after the execution of this agreement shall and will pay the company-dollars, unless the said amount is otherwise previously paid, and thereafter he shall and will pay a like amount within thirty days the -day of-, in each year following the execution of this agreement, unless the said amount is otherwise previously paid, until he shall serve upon the company competent, legal, and written evidence (a) of the company’s final discharge from the said suretyship, and from all liability by reason of the said bonds and any renewal thereof and any new bonds issued in continuation thereof or as a substitute therefor; (b) of the expiration, without appeal or other review proceedings, of the time to appeal from and to review any decision, adjudication, or determination directly or indirectly fixing or discharging such liability of the company. ’ ’

A jury was waived, and the cause was submitted to the court. . Judgment was entered for the amount claimed in the petition, with interest. This action is prosecuted to reverse that judgment.

It was admitted in open court that there was no claim under the second clause of the indemnifying contract.

The question here is: Whether Cleary, under the first clause of the contract, is liable for the premiums due the company from the Cleary-White Construction Company and from Cleary and Dubia.

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 and 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 and 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, 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 in this case.

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

Judgment reversed and judgment for plaintiff in error.

Hamilton, P. J., and Mills, J., concur.  