Peterson v. Abbe

Braley, J. The property conveyed by the plaintiff to the defendant was subject to a first and second mortgage which by the terms of the deed the defendant as grantee "assumes and agrees to pay, meaning hereby to assume and pay both of said mortgages and to hold the grantor harmless thereon.” The principal of the first mortgage not having beep paid on May 16, 1907, when it became due, foreclosure followed on June 29,1907, and a deed was given to the purchaser under the power of sale. The foreclosure extinguished the lien of the second mortgage but not the debt, and, the proceeds of the sale having failed to pay in full the amount of the mortgage note with accruing interest, the holders brought suit against the plaintiff, and, having recovered judgment which he has satisfied, the present action is brought to recover the amount. The defence is, that, even if the defendant undertook the payment of each mortgage, the plaintiff’s cause of action accrued on May 16, 1907, and, more than six years having elapsed before the present action was begun, it is barred by the statute of limitations. R. L. c. 202, § 2, cl. 1. The defendant, relying on Rice v. Sanders, 152 Mass. 108, also contends that, having assumed the incumbrances, he undertook not only to pay the first mortgage but to relieve the premises from the lien of each mortgage, and, the plaintiff having permitted the foreclosure, his damages for breach of the agreement are limited to the value of the security thereby lost. The agreement, however, is a contract of indemnity, whereby the defendant expressly engages to save the plaintiff harmless from payment of the second mortgage. The relation of the parties as between themselves became that of principal and surety, and while the security may be considered as a primary fund out of which the plaintiff as surety was entitled to have payment made, yet the grantee and principal undertook to relieve him from all personal liability on the mortgage note, as well as from all liability under the mortgage. Rice v. Sanders, 152 Mass. 108. The agreement by its terms is severable and an action lies for separate breaches. Badger v. Titcomb, 15 Pick. 409. McQuesten v. Spalding, 231 Mass. 301. If it be conceded that the plaintiff might have brought suit at any time after March 26,1907, when the balance remaining on the second mortgage was overdue and unpaid, nevertheless he has as surety the option to'rely on the defendant’s personal undertaking [470] of complete indemnity, and, until obliged to make payment, the statute did not begin to run. Hall v. Thayer, 12 Met. 130, 135. Thayer v. Daniels, 110 Mass. 345. McQuesten v. Spalding, 231 Mass. 301. The contract having stipulated for full indemnity, the plaintiff’s • damages are based on the loss actually sustained, which includes not only interest but legal costs and expenses. Montgomery Door & Sash Co. v. Atlantic Lumber Co. 206 Mass. 144, 157. Stiles v. Municipal Council of Lowell, 233 Mass. 174. The plaintiff accordingly is entitled to judgment in the sum of $168.98 with interest from the date of the writ. So ordered.