Scott v. Tyler

T. R. Strong, J. Several questions are raised on the part of the defendants, but it is unnecessary to consider more than two. 1st. Does the condition of the bond embrace the damages and costs recovered by Disbrow, or any part thereof? and 2d. Is the condition broken by a mere liability of the plaintiff for the charges of his attorneys, without actual payment ? In considering the first question, it is important to have regard to the state of things existing when the bond was given. [204] The property, the taking of which was the subject of the replevin suit, had actually been seized under the execution; the liability of the plaintiff for the taking had occurred; and the suit in replevin founded on that liability was then pending. If no defense had been interposed, judgment would have been obtained against the plaintiff for damages for taking the property, and costs. Under these circumstances, the defendants undertook, by their bond, that in case the plaintiff should defend the suit they would indemnify and save him harmless from all “ costs, charges and expenses,” which he should incur, “ in defending such suit.” This language, used under such circumstances, certainly does not manifest an intention in the minds of the parties that the indemnity should extend to the damages and costs which Dis-brow might recover. In my opinion it rather evinces a contrary intention. The words “ costs, charges and expenses,” are entirely inapplicable to those damages; and when used in connection with the words “ in defending such suit,” clearly cannot include expenses of its prosecution. Upon the idea that it was the intention of the parties to limit the obligation of the defendants to the expenses of the defense strictly, excluding damages and costs on the other side, the language employed was well chosen and carefully guarded. I am satisfied no other inter- * pretation than that such was their intention can be given to it i without doing violence to its ordinary meaning, which is not / allowable—certainly not as against a surety. The manner in which the second question should be determined depends upon what the indemnity is—what is indemnified against. If the obligation of the defendants is to indemnify and save the plaintiff harmless from charge or liability, he is entitled to recover to the extent of the charges of his attorneys, his liability therefor being established; but if it is to indemnify and save harmless from loss or expenses, he must fail, no loss or expense within the terms of the bond being proved. This distinction in regard to when an action will lie on an agreement to indemnify, without payment, and when payment must have been previously made, to maintain the action, has long existed, and is well settled, though in the application of the rules some [205] disagreement has been occasioned among the cases. (Gilbert v. Wyman, 1 Comst. 550. Webb v. Lansing, 19 Wend. 423. Campbell v. Jones, 4 Id. 306. Crippen v. Thompson, 6 Barb. 532. Aberdeen v. Blackmar, 6 Hill, 324. Rockafellar v. Donnelly, 8 Cowen, 639. Churchill v. Hunt, 3 Denio, 321. Chase v. Hinman, 8 Wend 452.) The decision in the last case was questioned in Aberdeen v. Blackmar and Churchill v. Hunt, above cited. The language of the indemnity given by the defendants is that they will indemnify and save the plaintiff harmless from all costs, charges and expenses which he shall incur," in defending the suit of Disbrow. It is claimed on the part of the plaintiff that the word “ incur” means “ to become liable or subject to.” Giving it that interpretation, which I think just, and the bond is to be read as though those words had been used in the place of “ incur.” The contract of the defendants is then to indemnify and save the plaintiff harmless from “ all costs, charges and expenses which he shall become liable or subject to.” It is still, however, an indemnity against the “ costs, charges and expenses," such costs, charges and expenses as the plaintiff “ shall become liable or subject to,” and not against a liability for costs, charges and expenses. The words “ incur in defending such suit,” merely designate and limit the costs, &c. from which the defendants agree to indemnify, but do not make a liability for them the subject of the indemnity. Thus regarding the indemnity, as one against “ costs charges and expenses,” it is an indemnity against harm, loss, expense, the payment of money, and no breach is incurred until actual payment by the party indemnified. The case of Campbell v. Jones, (4 Wend. 306.) is directly in point upon this subject. If the foregoing views are correct, the question under consideration must be decided against the plaintiff. [Livingston Special Teem, February 9, 1852. T. R. Strong, Justice.] Judgment must therefore be given in favor of the defendants.(a) Footnotes [(a)] This decision was affirmed, upon appeal, at. the Monroe general term, in March, 1853, held by Selden, Johnson and T. R. Strong, justices.