Williams v. Mercer

Holmes, J. Assuming that the principle of Humphrys v. Pratt, 2 Dow. & Cl. 288, Adamson v. Jarvis, 4 Bing. 66, S. C. 12 J. B. Moore, 241, and the other cases cited in Jacobs v. Pollard, 10 Cush. 287, 289, would be followed and extended in this Commonwealth so far as to imply a warranty that the defendant was owner of the goods not mentioned in the writ which he was allowed to remove, or a contract of indemnity, from his request and bona fide statement that he owned them, — an assumption which is not free from difficulty, and which goes beyond the decided cases (see Tucker v. White, 125 Mass. 344, and Boston & Albany Railroad v. Richardson, 135 Mass. 473),—still we are of opinion that the ruling was correct. For, although a liability over on the part of the plaintiff alone may perhaps be taken into account by the jury in estimating the damages for breach of an express warranty, (Randall v. Raper, El., Bl. [143] & El. 84, and New Haven & Northampton Co. v. Hayden, 117 Mass. 433,) we cannot admit that the defendant’s implied undertaking, if any, extends to paying for an unsatisfied judgment for damages against the plaintiff when the defendant remains liable to have a similar judgment recovered against him, satisfaction of which will discharge the plaintiff without his being called upon for any part of what he now seeks to recover. There can be no doubt that the defendant remains liable. Elliott v. Hayden, 104 Mass. 180. The plaintiff’s case is not bettered by the construction given the usual bond of indemnity in Cook v. Merrifield, ante, 139. It is a sufficient answer to the argument that an agreement should be implied as extensive as that which the plaintiff would have obtained had he demanded an indemnity, that the plaintiff’s assumption to allow the removal of goods not mentioned in the writ would not have been covered by the bond if he had asked and obtained one in the usual form. We may add, that in all the cases like Humphrys v. Pratt, ubi supra, which have fallen under our eye, it appeared that the plaintiff had satisfied the judgment against him, and that the argument that a principal is not liable upon a contract made by his agent in his own name after judgment against the agent because he is liable to the agent at once, before any payment by or execution against the agent, and is not to be brought under a double liability, (Priestly v. Fernie, 3 H. & C. 977, 984,) gives a strong indirect sanction to our opinion, where the case is not one of principal and agent, and the liability over to the third person whose goods were taken is indisputable. So a surety must pay the debt for which he is liable before he can recover of his principal. Farrington v. Kimball, 126 Mass. 313, 315. Hoyt v. Wilkinson, 10 Pick. 31. Judgment for the defendant.