Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
[92 NJSuper Page 460] Defendant appeals from a judgment entered against him after a trial without jury, awarding
plaintiff damages of $43,352.56 with interest of $2,024. and a counsel fee of $5,000. He also appeals from an order entered in the same cause, prior to trial, striking his answer and permitting him only to cross-examine plaintiff's witnesses.
We treat with the latter point first. Plaintiff had served defendant, through his counsel, with a notice to take his deposition. Defendant, who was then out of the State, refused to appear for that purpose. At the hearing on the motion to strike the answer defense counsel admitted his client was "reluctant" to come to New Jersey. Beyond that, defendant has never offered any other explanation of his failure to appear. Under these circumstances we conclude that the order of the trial court was proper. R.R. 4:27-4, Interchemical Corp. v. Uncas Printing & Fin. Co., Inc., 39 N.J. Super. 318 (App. Div. 1956).
We next consider defendant's appeal from the judgment. The marriage of plaintiff and defendant had been terminated by divorce and in connection therewith certain settlement agreements were entered into by them. One of these recited that defendant "* * * hereby indemnifies against and agrees to hold his wife, Barbara E. Johnson, harmless from the following claim: * * *
(4) Any and all loss or damage (including, without limitation, legal expense if legal services are incurred) arising out of any claims for goods or services furnished to John Seward Johnson, Jr., Barbara E. Johnson, or their households at 75 Cleveland Lane, Princeton, New Jersey, or in Nantucket prior to January 12, 1962." (Emphasis in original)
This action was predicated upon that agreement. At the trial plaintiff testified to a list of charges upon which she
sought recovery. These were divided into three categories; first, those represented by checks in payment of certain bills; second, those covered by unpaid bills; and third, items for which no bills were available. The court, in determining the amount of the liability, included all of these items (except for a few disallowed), those unpaid as well as those paid.
Our courts have recognized two distinct types of indemnity contracts: those which indemnify against "liability" and those which indemnify against "loss." North v. Joseph W. North & Son, 93 N.J.L. 438, 441 (E. & A. 1919). The instant agreement is in the latter category. Thus, proof of payment by plaintiff is a condition precedent to recovery from defendant. North, supra.; Westville Land Co. v. Handle, 112 N.J.L. 447 (Sup. Ct. 1933); Bernstein v. Palmer Chev. etc., Inc. v. Rex Sales Co., Inc., 86 N.J. Super. 117, 122 (App. Div. 1965).
Plaintiff argues that the surrounding circumstances indicate that the intent of the agreement was that defendant should himself pay all the bills incurred prior to the specified date, rather than that he should reimburse her after she paid them. To this there are two answers. Such surrounding circumstances are inadequately demonstrated in this narrow record. And second, the meaning which plaintiff seeks to attach to the written agreement is not one which the words used will fairly bear. See Garden State Plaza Corporation v. S.S. Kresge Company, 78 N.J. Super. 485 (App. Div. 1963), certification denied 40 N.J. 226 (1963). This is particularly so where legal terms of art, such as "indemnifies" and "hold harmless," have been used by the lawyers ...