APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Civil Action No. 70-3376.
Biggs, Gibbons and Garth, Circuit Judges.
The plaintiff-appellee, Siata International U.S.A., Inc. (Siata U.S.) was engaged in the business of importing automobiles from Italy to the United States, and entered into a sales agreement dated May 10, 1969 with Siata Auto SPA (Siata Italy), an Italian automobile manufacturer, for the purchase of 1350 "Spring" model automobiles at a price of $1,355.00 each, delivery to be made ex the Siata Italy plant, according to a specified monthly schedule. An "Agreement for Performance Bond" which states that it is "based upon the sales contract of May 10, 1969" for the delivery of 1250 cars*fn1 was entered into upon some date not shown in the record.
The bond itself, issued by defendant-appellant Insurance Company of North America (INA) (P-4), is designated on its face as an "Advance Payment Bond", and is as follows:
INSURANCE COMPANY OF NORTH AMERICA PHILADELPHIA
KNOW ALL MEN BY THESE PRESENTS, THAT WE, SIATO AUTO S.p.A. Strada di Lanzo 221, Turin, Italy (hereinafter called "Principal"), as Principal, and the INSURANCE COMPANY OF NORTH AMERICA, a Corporation organized and existing under the laws of the State of Pennsylvania, United States of America, (hereinafter called "Surety"), as Surety, are held and firmly bound unto SIATA INTERNATIONAL U.S.A., INC., 116-11 Hillside Avenue, New York, New York (hereinafter called "Obligee"), in the penal sum of One Hundred Thousand and no/100 Dollars ($100,000.00), good and lawful money of the United States of America, for the payment of which, well and truly to be made, we find ourselves, our heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents.
SEALED with our seals and dated this 30th day of June A.D. 1969.
WHEREAS, the above bounden Principal has entered into a certain written contract with the above Named Obligee, dated the 10th day of May, 1969 for furnishing and delivery of One Thousand Two Hundred Fifty (1,250) Spring Model automobiles with delivery to be completed within the period specified in the contract,
AND, WHEREAS, the above Named Obligee has agreed to advance to the Principal the total sum of One Hundred Thousand and no/100 Dollars ($100,000.) with such sum to be repaid during the term of the contract by deduction from the agreed purchase price an amount not exceeding Eighty Dollars ($80.00) for each vehicle delivered to the Obligee.
NOW, THEREFORE, THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that if the above bounden Principal shall repay to the above Named Obligee the lesser of the total sum of One Hundred Thousand and no/100 Dollars in the event of non-delivery of all of the 1,250 vehicles; or an amount equal to Eighty Dollars ($80.00) per vehicle for Delivery of each vehicle less than the total of 1,250 ...