Higgins v. Russo

Hall, J. The trial court rendered judgment against the defendant for the amount which the plaintiff had been required to pay to satisfy a judgment against him for having, as a deputy-sheriff, attached certain goods under a writ placed in his hands for service by the defendant as an attorney at law. *242 This judgment is claimed to be erroneous upon three grounds: first, that the defendant, being an attorney at law, and known by the plaintiff, to have been acting as such, did .not, by delivering to him as an officer a writ of attachment with directions to take particular goods as the property of the debtor, become thereby liable to reimburse him for loss sustained because the goods so attached were the property of another; second, that upon the facts found there was no promise to indemnify the officer; third, that by his misconduct or negligence in failing to give to the attorney certain information which the officer had gained concerning the title to the goods attached, he forfeited his right to be reimbursed for the amount so paid by him. In the case of Heath v. Bates, 49 Conn. 342, 345, this court said: “ The rule seems a reasonable one, and the only reasonable one, that an attorney placing a writ in an officer’s hands for service, is to be regarded as personally requesting the service and as personally liable for it, unless he expressly informs him that he will not be personally liable, or there are circumstances which make it clear that that was the understanding of the parties.” In the case at bar the attorney knew before employing the officer that the good's, afterwards attached as the property of the defendant named in the writ, were claimed by his brother, who subsequently proved his title to them. He expected that the question of the ownership of the property taken would be contested, and had received from his clients a sum to be used to enforce their claim and to reimburse the officer for any loss he might sustain by attaching these goods. The officer was not referred to the attorney’s clients, nor did he know them. He received all his instructions from the defendant, and was by him expressly directed to take this particular property and to hold it. Under the circumstances the attorney is justly regarded as having personally requested the services rendered, and as having personally directed the plaintiff to take the property attached. He is therefore personally liable for the consequences of his acts, one of which is the legal inference from these facts of a promise to reim *243 burse the officer for any loss suffered by having taken the property of the wrong person. “ The law, however, implies a promise of indemnity, on the part of the creditor, where he directs the officer to make a levy on any particular property.” 1 Sw. Dig. * 542. “Where one employs another to do acts not unlawful in their nature, or on the face of them, for the purpose of asserting a right, the law implies a promise of indemnity. Where a creditor in an execution directs the officer to levy it on certain property shown to him, claiming it to belong to the debtor, if the property should, prove to belong to some other person, and the officer should be subjected to pay for it in an action brought against him by the owner, he would have a claim of indemnity against the creditor.” 1 Sw. Dig. *414; Stoyel v. Cady, 4 Day, 222, 226; Nash v. Smith, 6 Conn. 421, 426; Marcy v. Crawford,, 16 id. 549, 553. The failure of the officer to inform the defendant of the names of the grantors in the bill of sale shown him, does not affect the plaintiff’s right of action nor the defendant’s liability. The officer attempted to conceal nothing. It was reasonable for him to suppose that the defendant knew the grounds upon which the debtor’s brother claimed title to the goods attached. The defendant could have learned by whom the bill of sale was given by inquiring of the vendee’s attorney, Mr. Pond, or of the plaintiff. It was not error to render judgment for the full amount paid by the plaintiff upon the execution against him. The defendant does not appear to have claimed, either in his answer or upon the trial, that he should be credited with the $65.70, the avails of the sale of the attached goods made by plaintiff upon his advice. That sum does not greatly exceed the amount admitted by defendant’s answer to be due the plaintiff as officer’s fees, which amount was not included in the plaintiff’s judgment. There is no error. In this opinion the other judges concurred.