Topliff v. Hayes

The opinion of the court was delivered by Davis, J. The declaration in this case counted simply upon a bond for the sum of $1000, executed jointly and severally by tie defendants, the first as principal, and the last as surety, dated November 25, 1840. The defendants craved oyer of the bond and condition ; and, being set out, it appears to have been a bond of [367] indemnity, intended to secure and save harmless the obligee from all “ damage and trouble ” he might be put to, in consequence of having, on the 31st of October preceding, as constable of the town of Barnard, attached, at the request and under the direction of Hayes, on a writ in his favor against Asa Chamberlain and Carmi D. Chamberlain, a quantity of hay, five cows, two horses, one double wagon and one double harness, as the property of the said Chamberlain ; and particularly from all damage, cost and trouble that had accrued or might thereafter accrue to said Topliff, from a suit which had already been commenced against him and the said Hayes jointly, for the act of attaching said property, by one Carlos Chamberlain, who claimed to be the owner thereof at the time of the attachment. The defendants pleaded, — 1, Non est factum; 2, Non damnificatus; 3, That the plaintiff has never paid the judgment recovered by Carlos Chamberlain against him and the principal in the bond, but the latter remains jointly liable with the former therefor, and has, moreover, for one whole year, been imprisoned in the common jail in Windsor county, and its liberties, by virtue of said Chamberlain’s execution, and has had and can have no benefit from any act done or payment made by the plaintiff upon said joint claim. These two last grounds of defence are presented in the form of a written notice, in connection with the first plea. The plaintiff joins issue upon the plea of non est factum, and replies to the matters contained in-the notice, by setting forth, as breaches of the condition of the bond, the prosecution to final judgment of the suit instituted by Carlos Chamberlain, in 1842, the taking out of execution thereon and putting the same into the hands of a deputy sheriff for collection, and the payment by him, October 25, 1843, of the full amount thereof, with interest, officer’s fees, &c., being 8403,20 ; and farther, that he had been obliged to pay $ 100 more, for expenses of keepincr the cattle attached, and for necessary assistance in taking care of the property. The defendants rejoin, that the plaintiff had not, before the commencement of this suit, been compelled to pay said judgment and execution, and had not in fact paid the same, nor the other money mentioned in his assignment of breaches; and tender an issue to the country, which is joined by the plaintiff. Several points have been made by the defendants’ counsel, the most important of which, perhaps, is based upon the idea, that, even [368] if the plaintiff had truly paid the full amount of Carlos Chamberlain’s judgment against himself and Hayes, and thus the contingency had occurred, which rendered the bond absolute, still he would not be entitled to recover, without averring and proving, before the commencement of the suit, notice to the principal in the bond, at least, of such damnification. The objection to the receipt executed by Augustus, the agent, or attorney, of Carlos Chamberlain, showing payment, and the subsequent request for instructions to the jury upon this point, both assume the necessity of such previous notice. As the declaration does not and need not contain any allusion to the condition of the writing obligatory, and of course no assignment of breaches, if it were incumbent at all upon the plaintiff to place such an averment upon record, it could properly be done no where else, than in such assignment of breaches. Jt could doubtless have been done in connection with the statement of the fact of payment, without any incongruity; but, instead of demurring on account of the deficiency, the defendants, in their rejoinder, reiterate, with some little enlargement, what they had averred in their notice, that the plaintiff had not been compelled to pay, and had not paid, the judgment of Chamberlain, and tendered an issue of fact. The issue, thus formed, must necessarily be passed upon by the jury, and found for one party, or the other, according to the weight of evidence adduced. It has been found for the plaintiff, and no motion was interposed, on the part of the defendants, for judgment in their favor non obstante veredicto, nor to have the verdict set aside and a re-pleader awarded on account of the immateriality of the issue. I am satisfied, that no such motion could have been properly entertained; but whether so, or not, under the circumstances of the case the county court could not do otherwise than render judgment upon that verdict for the plaintiff. This view of the subject necessarily disposes of the objection to the introduction of the receipt, unless accompanied by evidence that the payment verified by it was made known to Hayes. Such a circumstance was not comprehended in the issue, and need not, therefore, be proved. All that has fallen from counsel, in respect to the supposed necessity of satisfaction being entered upon the original execution, or the copy lodged with the jail-keeper, or upon the clerk’s docket, rests upon no better foundation. Had the defend [369] ants, in their rejoinder, insisted upon want of notice, it would evidently have constituted what is called a departure in pleading; and, on demurrer, judgment must have been given for the plaintiff. 1 Saund. R. 116. Besides, had the matter been presented in a proper way to test this question, I think there is no necessity, in assigning breaches of the condition of an indemnifying bond, to set forth that the party, bound to provide indemnity, was notified of those facts which constitute a breach of the bond ; as, had there been no bond in the case, and the action had been assumpsit, no allegation of notice of that kind would have been necessary in the declaration. 1 Saund. R. 116. Williams v. Granger, 4 Day 444. Lent et al. v. Paddleford, 10 Mass. 730. 1 Steph. N. P. 381. 1 Chit. Pl. 286, 287. Hayes was the principal in the suit against himself and his officer, and must be presumed to have been equally cognizant with the latter of its progress and final termination. With or without a special engagement to that effect, by bond or otherwise, it was his duty “at all times to indemnify and save harmless his agent; and, when judgment was finally obtained, it was his duty to satisfy it. If he fail to do this, and the officer thereby is compelled to do it for him, a right of action results immediately, without notice, or special request. It is useless to inquire by what chapter of accidents it happened, that, after the payment of the judgment by Topliff, Hayes, who was then on the jail limits, was not only not discharged by the creditor, but continued thus restrained of his liberty for about a year, when he was, at the instance of his bondsman, recommitted to close jail, from which he was again relieved by procuring new bonds, — which soon became inoperative by the certificate of Chamberlain’s attor-nies, indorsed upon the copy of the execution in the jail-keeper’s possession, importing that the judgment therein referred to had been settled between the parties, about a year previous. Chamberlain resided in Boston, and may be presumed to have been unaware of Hayes’ continued confinement. His attornies resided in the village where the jail was situated, but may have been ignorant of the receipt of notes in satisfaction by Augustus; or, if acquainted with that fact, may have had no knowledge of the continued detention of Hayes, until the recommitment turned their attention to it. However this may be, it was no part of the duty of the plaintiff, residing in Barnard, to make inquiries into these matters. He might reason [370] ably suppose/ that, when the debt was satisfied, the creditor would cease to pursue either himself or the principal farther. Although he might have been apprised of Hayes’ commitment to jail, — which, however, does not appear, — he was under no obligation to procure his discharge. He stood, in effect, in the light of a surety, having no duties to discharge, but such as his contract imposed upon him, and entitled to indemnity at all times from his principal. Whether Hayes has any remedy, as against Chamberlain, for the long detention he suffered, after the debt was satisfied, is .a question with which we have nothing to do. It is hardly necessary to say, that we perceive no error, on the part of the county court, in allowing that portion of Carlos Chamberlain’s deposition to be read as evidence, in which he speaks of the authority he had given to his former clerk, Augustus, then in Vermont, to settle and adjust the execution and judgment against Hayes and Topliff, and explains the motives and objects he had in view. The letter containing this authority, or so much of it as bears upon this point, the signature’being proved, was read by the plaintiff without objection in the opening of his case, for the purpose of laying the foundation for the admission of Augustus’ receipt. The recollection of the deponent as to the contents of his letter was certainly very accurate. The jury could not, therefore, have been misled. The judgment of the county court is affirmed.