Marcy v. Crawford

Hinman, J, The fourth and last cause assigned for error, has not been insisted upon in the argument; and the only notice it is necessary to take of it, is, to say, that the record shows no facts from which this claim, as made in the writ of error, can arise in the case. It does not appear from the bill of exceptions, what the charge of the county court was upon this claim; nor does it appear, that the court was requested to charge the jury upon it. In the absence, then, of any evidence of this sort, the presumption is, that if the court gave any instructions to the jury upon the subject, it charged them correctly. The second cause of error assigned in the writ, may also be disposed of, in a few words. The promise of the defendant to pay one half of the damages, which might be recovered against Samuel P. Crawford, for fishing in the mill-pond, and one half of the expenses of defending against such a suit as might be brought against him for such fishing, was in no sense a promise to answer for the debt or default of Samuel P. Crawford; but was an original undertaking, and of course, not within the statute of frauds and perjuries. It could not be for the debt of S. P. Crawford ; for he owed none. It was not for his default; but was rather a promise of indemnity, to a certain extent, for doing a particular act, like the promise of indemnity to an officer for taking property, which it may be doubted whether the creditor can hold. Then as to the first error assigned, that the county court did not instruct the jury, that the promise claimed to be proved by the plaintiff, was an illegal promise, because, as the defendant insisted, it was a promise made in consideration of the commission of an illegal act. Now, there can be no doubt, that the law will not enforce a contract to commit an illegal act. A promise to commit a battery, to pull down another's house, or to commit any such wilful trespass to another, is illegal and void. But, merely because an act proves to be a trespass, which was not originally supposed to be so, will not render a promise of indemnity for the commission of it, void. Promises of indemnity to officers to induce them to execute process, by taking property, where the title to it is disputed, are very common, and their legality has been often recognized. Wright & al. v. Lord Verney, 3 Doug. [554] 240. (26 E. C. L. 94.) Marsh v. Gold & al. 2 Pick. 284. Train v. Gold, 5 Pick. 380. And in the case of Stone v. Hooker, 9 Cow. 154. it was held, that a promise to indemnify against a trespass, is valid, unless it be shown that the promisee knew the act to be a trespass. And in Avery v. Halsey, 14 Pick. 174. where two persons were claiming title to personal property, and one of them called a third person to assist him in removing it; a promise of indemnity to the assistant was held to be valid, although the title of his employer turned out to be invalid. The question then, is, not whether the act turns out to be a trespass, but whether the parties knew it was a trespass, and contemplated it as such; or whether they contemplated the commission of an act, which they supposed they had a right to do, and did it under such claim of right. Now, it certainly is consistent with every fact stated in the bill of exceptions, that the agreement of the parties was made under a claim of right to fish in the pond; and that their object was, to lay the foundation to try their right. Nor is there any fact stated, which tends to show, that they contemplated the act of fishing as a trespass. There are not, therefore, any facts shown, which would have authorized the court, in instructing the jury, that the promise claimed to be proved, was illegal. But again, the instruction given to the jury, shows, that the fishing must have been under a claim of right. The court say to the jury, “ that if said trespass was committed under a claim made by the plaintiff and defendant of a right in them to fish in the said mill-pond ; said contract or undertaking of the defendant, as claimed by the plaintiff, was a valid and binding contract.” The court do not in terms charge the jury in conformity to the defendant’s claim. But the jury, under this instruction, must have found, that the fishing was done under a claim of right. They must have understood from this language, that it was necessary for them to find such to have been the claims of the parties, in entering into this contract, in order to render a verdict for the plaintiff. We think, therefore, that there was no error in this part of the charge of the county court. Another error assigned, is, that the court instructed the jury, that the plaintiff might recover, without proving previous [555] notice to the defendant of the judgment rendered against Samuel P. Crawford, and of the expenses of defending against the suit on which said judgment was rendered. In this too, we think there was no error. The general rule on this subject, is correctly stated, by Bristol, J., in the case of Ward v. Henry, 5 Conn. R. 600. “that if the obligation of the defendant depends on the performance of an act by the plaintiff to a third person, or by a third person to the plaintiff, the plaintiff’s right of action is complete, whenever the act is done; and it is unnecessary either to allege or prove notice of the act on which the obligation is to arise. In such cases, the matter on which the defendant’s obligation is to arise, is not regarded as lying more properly in the knowledge of the plaintiff than of the defendant.” It has accordingly been held, that a co-surety, who has paid money, may bring an action for contribution, without alleging or proving any previous notice of the payment to the defendant, or any demand on him for his share. Chaffee v. Jones, 19 Pick. 260. The parties in the case under consideration, stand, in relation to each other, very like co-sureties; and we do not see, why the same principle that was applied in the case cited, should not be applied to this case. Upon the whole, then, we think, that was no error in the proceedings of the county court; and of course, there can be none in the judgment of the superior court affirming them. In this opinion the other Judges concurred. Judgment affirmed.