Weld v. Nichols

Shaw C. J. delivered the opinion of the Court. The first exception taken in the present case, and the one mainly relied upon in argument is, that the promise or agreement upon which the plaintiff founds his claim, could not be proved by parol evidence, and that the admission of the parol evidence there fore was wrong. ' The clause in the statute of frauds, St. 1783, c. 37, § 2., on which the exception is founded, provides “ that no action shall be maintained upon any contract or sale of lands, or any interest in or concerning the same, unless the. agreement, &c. shall be in writing.” The agreement upon which the suit is founded is this ; the plaintiff had entered into an agreement with the defendant, in writing, to sell him a lot of land, and to make a certain title, within a time limited, &tc. The plaintiff after wards, in pursuance of the contract, conveyed the land to the defendant, and gave a certificate, that the terms of that contract had been complied wu'th ; thereupon the defendant promised the plaintiff, that if any claim should thereafter be made against him personally, respecting certain walls built on the lot, by adjacent proprietors, and enforced, the defendant would pay the plaintiff all sums that he should be so obliged to pay, and all costs and expenses. This was not a contract concerning any interest in land, within the meaning of the statute. It was the ordinary case of a promise to indemnify the plaintiff against a mere personal liability. Had Weld’s [543] ability to pay for the walls, been a charge on the land, it would have devolved on the defendant, without such promise, as a purchaser. It has been held under this statute, that a contract with a mortgager of lands, to pay off a prior incumbrance and thus discharge the land from a lien, is not within this statute ; which is a case somewhat stronger than the present. Owen v. Estes, 5 Mass. R. 330. This was not a collateral promise to pay Weld’s debt to Luther, whicn would have required evidence in writing to enable Luther to maintain an action upon it ; it was a direct promise to Weld, to indemnify him against the claim of Luther. Another exception is, that it was contrary to Weld’s own deed to the defendant, warranting the land as free of all incumbrances. But this we think is answered by the obvious consideration, that the liability of the plaintiff to pay for the walls, was not a charge upon the land, but a mere personal liability, and therefore it was not in any respect repugnant to the covenant. The cancelling and delivering up the former agreement at the defendant’s request, although the promise of indemnity therein contained was in different terms, was still a good consideration for the promise declared on. It was objected that the record of the suit against the plaintiff, ought not to have been admitted, first, because the case was res inter alios acta, and secondly, because the suit was brought, among other things, upon an express promise of the plaintiff to Luther, and although there was evidence tending to show that the recovery was upon an implied and not on the express promise, still it did not appear from the record, that damages were not given on the count declaring upon an express promise. But we are of opinion, that the objection cannot be supported upon either ground. In a promise to indemnify, especially against a demand which the parties think is not well founded, the party indemnified is bound in good faith, not to yield to the demand, until compelled by law to do so. He is therefore bound to show [544] that he has paid under a judgment, and for this purpose the judgment is the proper evidence. It is like the ordinary case of one suing on a covenant' of seisin or warranty, who must ordinarily produce the judgment by which he has been evicted. If the defendant has had due notice of the suit, and full means to aid in the defence, such judgment will in general be conclusive of the existence of the claim, against which the covenant was made. The covenantee, or party indemnified, may, if he please, yield to the claim, and pay without a judgment ; but he does it at the risk of being obliged, in his suit for indemnity, to prove the existence and truth of such claim. Nor is there more weight in the other part of the objection, that the recovery might have been had upon the plaintiff’s promise. Had there been proof of any such express promise, made by the plaintiff after the promise of indemnity made by the defendant, it might have been easily shown ; but there was no evidence of it, the thing is intrinsically improbable, and therefore we suppose no such promise is pretended. Then the defendant’s promise to indemnify the plaintiff against the claim for the walls, was general, to indemnify him against his liability, whether that liability arose from a promise express or implied. It was in his power to acquaint himself with the grounds, upon which that liability rested, and to withhold his promise of indemnity, until he was satisfied. Whether the plaintiff misled him, by any misrepresentation, or wilful suppression, was fully and' properly left to the jury, upon the evidence, who, in finding for the plaintiff, have negatived any svch imputation. Judgment according to the verdict