Gillen v. Peters

Opinion by Clogston, C.: The contract here sued on is not merely one to indemnify and save the plaintiff harmless, but it is an unconditional agreement to pay the debts of the partnership. If it was to indemnify the plaintiff only, then no action could be maintained thereon until the plaintiff had first paid the debts, or in some manner sustained damage by their non-payment by the defendant; but where there is an affirmative contract to do or to perform a certain act, or pay a certain sum of money, or a certain indebtedness, an action may be maintained although the plaintiff has performed no act, or paid no part of the indebtedness, or has sustained no actual damage; and the measure of his recoveiy is the value of the act to be done or the payment to be made. (Lathrop v. Atwood, 21 Conn. 116; Stout v. Folger, 34 Iowa, 71; Bacon v. *491 Marshall, 37 id. 581; Crofoot v. Moore, 4 Vt. 202; Gage v. Lewis, 68 Ill. 604; Smith v. Riddell, 87 id. 165.) This may seem to be a hardship in some instances, but when carefully examined it will be seen that the hardship, if any, falls upon him who fails to perform his contract, and by such neglect or refusal to perform or discharge the indebtedness the liability is incurred. Then can he be heard to urge as an excuse the hardship that may attach to such a recovery ? By his agreement he has made the doing of the act or the payment of the account his own act or debt, and the plaintiff being primarily liable for the debt may recover the amount of it; and it is no defense for the defendant to say, “You are not damaged although I have violated my agreement,” or to add, “ If I am liable, it is only for nominal damages.” Where courts of law and equity are separated, serious inconvenience and trouble may result from a recovery for the actual amount of a debt; but in states like ours, where the courts have the power to make such orders and decrees as will protect the defendant in the payment, such as ordering the money to be paid in extinguishment of the original indebtedness, or that the original debtor be made a party to the proceedings, or the like, no serious hardship or injustice will be done. (Ham v. Hill, 29 Mo. 275; Wilson v. Stilwell, 9 Ohio St. 467; Jackson v. Turrell, 39 N. J. L. 329; Stambaugh v. Smith, 23 Ohio St. 584.) The plaintiff’s petition therefore stated a cause of action, and the court erred in sustaining the motion to dissolve the attachment. It is therefore recommended that the cause be remanded, with the order that the motion of the defendant to dissolve the attachment be overruled, and the cause proceeded with. By the Court: It is so ordered. All the Justices concurring.