Bechtle, District Judge.
Plaintiff, The Home Indemnity Company, seeks a judgment on the pleadings under Rule 12(c), Fed. R. Civ. P.,
in its favor against Consolidated Dressed Beef Co. ("Consolidated"); four individual defendants, Samuel, Nathan, Reuben and Sidney Silverberg; and The First Pennsylvania Banking and Trust Company ("First Pennsylvania")
for the sum of $189,770.28, with interest from May 1, 1972, and costs. Consolidated, as its name indicates, is in the business of selling meat. Its place of business is at 3605 Grays Ferry Avenue, Philadelphia, Pennsylvania.
In its complaint, consisting of ten paragraphs, plaintiff alleges that on December 1, 1970, it, as surety, and Consolidated and the four Silverbergs, as indemnitors, executed a general indemnity agreement (Complaint, Exhibit "D") in which the latter agreed to indemnify the plaintiff for all sums which it shall pay on the indemnitors' behalf as a result of the agreement; that on the same day Consolidated, as principal, and plaintiff, as surety, executed and delivered to the B & O Railroad a bond (Complaint, Exhibit "A") for "'Order Notify' and 'Advise' Shipments," in the face amount of $150,000,
to indemnify the railroad against certain losses on requests for payment due the railroad on shipments of merchandise to Consolidated; that in reliance on the bond, the railroad delivered meat under bills of lading to Consolidated at its place of business, demanded payments for them from Consolidated, but no payments were made; that following Consolidated's refusal to pay, the railroad demanded payment from plaintiff under the terms of the bond; and that on May 1, 1972, plaintiff paid the railroad $189,770.28, representing the amount due it for meat shipped to Consolidated and, in return, received from the railroad an assignment of its rights against Consolidated.
The plaintiff also avers in the complaint that, at all times material to this action, Consolidated was insolvent and that, by virtue of certain rights under agreements between Consolidated and First Pennsylvania, the latter took possession, control and supervised the affairs of Consolidated. Paragraph 8 of the complaint states: "During all said times, First [Pennsylvania] knew or should have known, realized or should have realized that Consolidated was insolvent and therefore unable to meet its obligations, including the obligations aforementioned. Moreover, at the time of the deliveries of said shipments, First [Pennsylvania] had been duly notified thereof and accepted said deliveries with full knowledge of the aforementioned facts and circumstances." Finally, in the last paragraph of the complaint, plaintiff avers it has "demanded that each and every defendant pay to it the amounts due by reason of the foregoing facts . . . but none of them has paid any part thereof."
All of the defendants have filed answers to the complaint. Neither a counterclaim (denominated as such) nor a cross-claim has been pleaded in the answers, and the Court has not ordered plaintiff to reply to the answers. Under Rule 7(a), Fed. R. Civ. P., the pleadings are closed and plaintiff's motion will not delay the trial if there is to be one. The motion is ripe for decision.
Answering the complaint, Consolidated and the four Silverbergs admit all the allegations of the complaint but deny any liability to plaintiff for the asserted reasons which they set forth as a second defense, as follows:
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