Griffiths v. . Hardenbergh

James, J. This must be regarded as an action upon the bond set out in the complaint. That pleading contained much irrelevant matter, but as there was no motion to purge it of such matter, if the facts proved on the trial sustain its material averments, and show a cause of action, the judgment may be sustained, at least to the extent of the cause of action proved, notwithstanding such" irrelevancy. The penalty of this .bond was $1,000; the condition, that the Central Bank would bear harmless, and indemnify the plaintiff from all damages, costs, &c., that might arise for levying upon and making sale of property taken under and *468 by virtue of an execution in favor of said bank against Andrews, or for entering any shop, store, building, or other premises in taking such property. The questions presented by this appeal arise on a motion for a nonsuit, which brings up the whole case, upon the facts as well as the law. It was first insisted that the complaint should be dismissed, because there was no breach of the bond proven. This 'objection was predicated' upon the fact, that the recovery against the plaintiff was for a trespass in making the levy, committed before the bond was executed, and the act was not covered by it; or if it was, the bond was void. The condition of the bond was to indemnify against damages, coste, &c., that might at any time arise, as well for levying under, and by virtue of the execution described, as for entering any building, or other premises, to. make, such levy. The recovery against the sheriff was for entering a dwelling and levying on the property of one of the defendants in the execution; and therefore, by its letter, as well as spirit, the indemnity covered the act for which a recovery was had against the sheriff. That such was the defendant’s intention, is manifest not only from the bond itself, but also from the circumstances connected with its execution and delivery. In giving construction to this bond, it is proper to look at all the surrounding circumstances; the pre-existing relations between the parties, the facts, and the knowledge which each had of those facts. If nothing appeared in the case outside the bond, it might, with some grace, be claimed that it did not indemnify against tortious acts committed before its execution; but taken in connection with the circumstances surrounding the execution and delivery, considering that the levy was made in the tortious manner it was, by the obligor’s direction, who knew the manner of the execution before delivering the bond; that the sheriff refused further to proceed unless indemnified, it is quite certain that the obligor intended the instrument broad enough to cover every act which had been done, or should afterward be legally done, in levying on and selling *469 the property of the defendants in said execution. (Blossom v. Griffin, 13 N. Y., 569.) This is not a modification of the contract, but an interpretation of it “by the light of the surrounding facts as they existed at the time of its execution and delivery.” The language of the instrument is, “ whereas certain goods and chattels, that appear to belong to the said defendants, or one of them, have been levied on by the said sheriff,” thus giving color to the subsequent words of the instrument, indemnifying against “ the levying as well as against the entering any building or other premises for the taking of such goods.” I think a breach of the bond was fully established. It was next claimed, if the bond contained an indemnity against the trespass in taking the property, it was void. 1st. Because stipulating for an illegal act. 2d. Under the statute, as taken colore officii, by a public officer. A bond, given to indemnify against an illegal act to be done, is void; but not so, when given to indemnify against an act already done, and not kown to be illegal at the time. In the latter*ease the indemnity is valid. (Stone v. Hooker, 9 Cow., 154.) In this case, it was shown, that the act was supposed to be lawful when done, and when the indemnity was given. Even a party guilty of an illegal act, may take an indemnity against its consequences. (Doty v. Wilson, 14 John., 379; Kneeland v. Rogers, 2 Hall, 579.) Taking a bond of indemnity in a case like this, is no violation of 2 R. S., 286, which prohibits a sheriff, or any other officers, from taking any bond, obligation, or other security, by color of his office, in any other case or manner than such as are provided by law, and declaring every bond, obligation, or security taken otherwise, void. Taking indemnity by a public officer, is not unlawful, because not expressly authorized by statute; a bond, valid at common law, is not avoided by said statute. The words, “ color of office,” as used in said statute, imply an illegal claim of right or authority to take the security. (Burrell v. Acker, 23 Wend., 606; Decker v. Judson, 16 N. Y., 439 ; Chamberlain v. Beller, 18 N. Y., *470 115.) “ Color of office,” is defined by the law dictionaries, as “ champerty, an act wrongfully done by an officer, under the pretended authority of his office, and grounded upon corruption, to which the office is a mere shadow of color.” There was nothing of that kind in this case. The charge given to the jury, in this case, cannot be made a ground for exception, because at the close of the ease, the court directed the verdict rendered. The instructions given previous to such direction, became wholly immaterial. The questions, if any, arise as to the correctness of such direction. The direction was, that the plaintiff was entitled to recover; and to recover the full amount paid by the plaintiff, to wit, $1,374.18, with interest from January 28, 1868. To this direction, I think, there was a sufficient exception. In my judgment, the defendant was liable upon the bond, and only upon the bond. What took place between the parties in respect to appealing the action against Griffith to the Court of Appeals did not affect the validity of the bond, nor increase the defendant’s liability-; therefore its admission did no harm. I think the direction to the jury, as above stated, was erroneous as to the amount. The instrument was one of indemnity against certain acts; it was not strictly a money bond. In general the recovery on such instruments is limited to the penalty; it is otherwise on strictly money bonds. (Lyon v. Clark, 4 Seld., 148.) The penalty of the bond in this case was $1,000 ; the recovery $1,374.18, exceeding the penalty and the interest thereon, from the date of the recovery against the sheriff to that date. ■ It was sought to sustain the recovery for the amount directed, on the theory of a verbal promise, subsequent to the bond; for which there was a special count in the complaint. But, in my judgment, the evidence did not show such a promise. In the most favorable view the evidence could only be said to be conflicting. Taken literally, the testimony of. the plaintiff did not show a promise by defendant outside the bond; and the defendant’s testimony was that *471 he did not intend a promise, but was merely giving advice as counsel. -At most, it was oath against oath, and as the affirmative was on the plaintiff, he failed to establish a promise. The direction was therefore wrong, as to the amount of damages. - The extent of that error, however, was not very great. Whether or not, the instrument was merely a money bond, interest upon its amount, from the time of the recovery against plaintiff to the time of the trial in this case, might be collected by way of damages. In Mower v. Kip (6 Paige, 88), it was said “by the common law, the plaintiff in an action on a penal bond is entitled to recover damages for the detention of the debt beyond the amount of the penalty of the bond.” See, also, Smedes v. Houghtaling (3 Caines, 49); Holdiff v. Otway (7 Tenn., 447) ; Francis v. Wilson (Ryan & Moody, 105); Lyon v. Clark (8 N. Y., 148, 153). It is not, however, necessary to reverse this judgment and direct a new trial for this error in amount, if the plaintiff be willing to make the proper deduction. The excess of recovery was §241.18. The judgment in this action should be reversed and a new trial ordered, costs to abide the event, unless the plaintiff shall elect to deduct from the amount of damages the sum of $241.18 as of the day the verdict was taken; in which event, the judgment should be affirmed. But my brethren hold that no such exception was taken as enables the defendant to raise this question of excess of damages. In that view, the judgment should be affirmed. All concurring, judgment affirmed.