Lindsey v. Parker

Field, J. The only exceptions argued are, first, that it does not appear by any competent evidence that Norman Strickland was authorized by Mrs. Parker to agree to a settlement of the [585] suit of Cannon against Lindsey; and, secondly, that the sum paid by Lindsey as counsel fees in said suit cannot be included in the amount for which execution is to issue. It appeal’s by the report, that it was not contended that -the judgment entered in the suit by agreement “was collusive or fraudulent, either as affecting the parties to it or others collaterally affected by it, and it was not contended that Lindsey could have successfully defended said suit.” This, we think, is, in effect, an admission that there was no defence to the suit; and such an admission rendered the evidence objected to immaterial. There is no suggestion in the report that the settlement was not reasonable and proper. The bond is in the common form, to indemnify and save harmless the plaintiff “ of and from all suits, damages, and costs whatsoever, whereunto he ... . may be liable, or obliged by law to o pay to any person or persons, by reason of the said attachment.” The objection to including counsel fees in the sum for which execution is to issue is put solely upon the ground that they are not included in the damages and costs from which the defendants are to save the plaintiff harmless. The principles on which reasonable counsel fees are excluded from or included in the damages to be recovered, when there is no express contract of indemnity, were considered in Westfield v. Mayo, 122 Mass. 100; and the effect of an agreement of indemnity, general in its terms, was-considered in Howard v. Lovegrove, L. R. 6 Ex. 43. See also Smith v. Compton, 3 B. & Ad. 189. It has been said that “the law measures the expenses incurred in the management of a suit by the taxable costs.” Reggio v. Braggiotti, 7 Cush. 166, 170. See also Henry v. Davis, 123 Mass. 345, 346. But that these expenses exceed the taxable costs is now notoriously true. It was Lindsey’s duty to ascertain and determine whether there was a defence to the suit, and to defend it if there was a defence, and to employ counsel for that purpose, unless Mrs. Parker took upon herself the defence of the suit; and, as the words of the bond are all “costs whatsoever” to which the plaintiff “may be liable,” as well as the costs which he may be “ obliged by law to pay to any person or persons,” we think that they may be construed to include counsel fees reasonably incurred in the defence of a suit occasioned by the attachment. [586] The judgment is affirmed,, and execution is to issue for the sum awarded by the Superior Court, with interest from the date of the award. See New Haven Northampton Co. v. Hayden, 117 Mass. 433. So ordered.