They are so described in the bond and in the plaintiffs' brief. The bond and the certificate to which the bond refers must be construed together. Paisner v. Renaud, 102 N.H. 27, 29; Lavigne v. Lavigne, 87 N.H. 223, 225; Rivier College v. St. Paul Fire Ins. Co., 104 N.H. 398, 401. Nothing in the correspondence or elsewhere in the record remotely suggests that the contracting parties intended that the surety Seaboard should assume a substantially greater obligation than its principal, Merrimac. Rather, the entire transaction appears based on the liability of Merrimac, as written in the certificate. No reason appears why Seaboard as surety should have intended to take on a burden greater than it was legally bound to do.
We do not think that there is any ambiguity in the surety's undertaking, when the bond, contract and the specifications are read together. They constitute an integrated obligation. Rivier College v. St. Paul Fire Ins. Co., 104 N.H. 398; Paisner v. Renaud, 102 N.H. 27. "When as in this case, a bond refers to and is conditioned on the performance of a specific agreement the latter's terms become a part of the bond and the instruments should be read together as a whole." Paisner v. Renaud, 102 N.H. 27, 29; see also, 9 Appleman, Insurance Law and Practice, s. 5276, p. 70; Restatement, Security, s. 165, ill. 2; 4 Corbin, Contracts, s. 800.
Sleeper Village cites Paiser v. Renaud for the proposition that the breach of a notice of surety default provision requires a showing of actual prejudice. In Paiser the New Hampshire Supreme Court found that an obligee's failure to provide notice under the bond was not prejudicial. Paiser v. Renaud, 149 A.2d 867, 871 (N.H. 1959). However, Paiser is clearly distinguishable from the present case.
I decline to address this issue at the present time and instead invite the parties to submit additional briefing on the issue. Among the authorities that the parties should consider are: 4A Philip L. Bruner Patrick J. O'Connor, Bruner O'Connor on Construction Law § 12:74 (West 2010); Paisner v. Renaud, 149 A.2d 869, 871 (N.H. 1959); St. Paul Fire Marine Ins. Co. v. City of Green River, 93 F. Supp. 2d 1170, 1178-79 (D. Wyo. 2000); Kilpatrick Bros. Paving v. Chippewa Hills Sch. Dist., No. 262396, 2006 WL 664210 (Mich. Ct. App. Mar. 16, 2006). The court will hold a status conference to set up a briefing schedule on May 3, 2010 at 3:00 p.m.
Furthermore, when a bond refers to and is conditioned upon the contractor's performance of a specific agreement, the principal contract becomes a part of the bond and "the instruments should be read together as a whole." Paisner v. Renaud , 102 N.H. 27, 149 A.2d 867, 869 (1959) ; see Glens Falls Indemnity Co. v. American Awning & Tent Co. , 55 R.I. 284, 288, 180 A. 367, 369 (1935) ("A proper understanding of the scope of the bond, and of the obligation it imposes, cannot be had without reading the contract and the bond, and construing them together.").
Under New Hampshire law, if "a bond refers to and is conditioned on the performance of a specific agreement the latter's terms become a part of the bond and the instruments should be read together as a whole." Paisner v. Renaud, 102 N.H. 27, 29 (1959). Maine Bonding Cas. Co. v. Foundation Constructors, Inc., 105 N.H. 470, 473 (1964) ("the bond, contract and the specifications . . . constitute an integrated obligation").
Whether the time at which a witness was competent to render or supervise equivalent care was so remote from the time of the alleged malpractice as to disqualify him from giving expert testimony is a matter within the trial court's discretion. See Wiggin v. Kent McCray Co., 109 N.H. 342, 347, 252 A.2d 418, 422 (1969); Paisner v. Renaud, 102 N.H. 27, 31, 149 A.2d 867, 871 (1969). We find nothing objectionable in the legislature's decision to grant a medical malpractice defendant the privilege not to give expert opinion testimony against himself.
4 McQuillin, Municipal Corporations ss. 12.224, 12.224a (rev. vol. 1968); Rhyne, Municipal Law s. 8-35, at 171, 172 (1957). See Paisner v. Renaud, 102 N.H. 27, 29, 149 A.2d 867, 869 (1959); Rivier College v. St. Paul Fire Ins. Co., 104 N.H. 398, 401, 187 A.2d 799, 802 (1963); Totowa v. American Surety Co., 39 N.J. 332, 343, 188 A.2d 586, 592 (1963); Cf. City of Lowell v. Stiles, 232 Mass. 341, 342, 122 N.E. 412, 413 (1919). The rule which governs the interpretation of a contract of insurance prevails in this situation.
This is equally true in ascertaining the meaning of the telegram in question. Paisner v. Renaud, 102 N.H. 27, 29, 149 A.2d 867. "It follows that in construing the written agreement of these parties, all of its provisions, its subject matter, the situation of the parties at the time, and the object intended to be effected will be considered in arriving at the sense of the words they used."
Ricker v. Mathews, 94 N.H. 313, 317; Cormier v. Conduff, 109 N.H. 19. Questions of remoteness were also for the Trial Court, and we find no abuse of discretion on the facts of this case. Paisner v. Renaud, 102 N.H. 27, 31. We have examined the testimony of other witnesses which the defendant complains was erroneously received.