Selz, Schwab & Co. v. Guthman

Mr. Justice Waterman delivered the opinion of the Court. It is urged in behalf of appellees Wyman, Partridge and Coykendall, that as the proceedings out of which the present action arose were had in the State of Wisconsin, the laws of Wisconsin must govern the consideration of this case, and that appellants have failed to show any law of the State of Wisconsin corresponding to the law of Illinois, providing that creditors attaching at the same term of court shall pro rate as to proceeds. Mo evidence was given showing what the laws of the State of Wisconsin are, and in the absence of such evidence we must presume that the common law prevails there. The attachment law of this State is not a part of the common law, yet we are not in this proceeding to conclude there was no law in the State of Wisconsin under which an attachment could be had or maintained. It is undisputed that appellants and appellees did commence in the State of Wisconsin suits intended by them to be in attachment against Henry Cahn, and that under such proceedings, a large quantity of goods, at one time owned and possessed by him, and then in the possession of his mortgagees, was seized by the sheriff in that State, and such attachment proceedings being prosecuted to judgment, the goods obtained thereon were sold, and the proceeds distributed, as hereinbefore' set forth, to the attachment creditors. , We do not feel called upon to decide whether the attorneys for the respective attaching creditors who entered into the agreement to pro rate, had authority from their respective principals so to do. As to this, attention is called to Clark v. Randall, 9 Wis. 135. It is clear from the evidence that appellees knew what their respective attorneys had done in that regard, and made no objection thereto. Moreover, all of the appellees have, directly or indirectly, received the benefits of such agreement, and it is now too late for them to repudiate the same. Apparently such agreement was in the interests of all of the parties to this litigation. Suit having been brought against the sheriff, whom all of the parties to this litigation had undertaken to indemnify, judgment was obtained against him, from which judgment an appeal was taken to the Supreme Court of the State of Wisconsin. Wyman, Mullen & Co. did not sign the bond given upon such appeal, and, so far as appears, took no part in prosecuting the appeal, they having previously thereto assigned their claim to Goodman. Wyman, Mullen & Co. now urge that, not having signed said appeal bond, they can not be made to contribute to the payment of the judgment obtained thereon. Wyman, Mullen & Co. were responsible to the sheriff for any loss or damage which he might suffer on account of the levy which he made at their instance and by their direction. The sheriff who had acted upon their request in making the levy was entitled to call upon them to protect him against the claim made upon and suit brought against him by the mortgagees, whose property he had seized. The sheriff had a right to defend such action and to insist that appellees, and others in whose behalf he acted, should either pay the claim or defray the expenses of conducting the suit brought against him. So, too, when judgment was obtained against him, he had a right to insist that those whose agent he had been should either pay the judgment or defray the expenses of prosecuting an appeal to the Supreme Court. Appellees did neither, and they can not now complain of him, or of those who acted in his behalf, that instead of at once satisfying said judgment, they endeavored to have the same set aside by appeal to the Supreme Court. The sheriff in making the attachment had acted as an agent, appellee being among the number of his principals. A rule which pervades the whole law of principal and agent is, that the principal is bound to indemnify the agent against the consequences of all acts done by him in due execution of the authority conferred upon him. When in obeying the orders of, or performing duties for his principal, in good faith, the agent incurs expenses or liability, or is compelled to pay damages to third persons, the principal is bound to indemnify and reimburse him. When sued for an act done in pursuance of his employment, he is not obliged to let judgment go against him, but may defend, and recover the expenses of a defense bona fide made. First Nat. Bank v. Tenny, 43 Ill. App. 544. Whether Wyman, Mullen & Co. received, directly or indirectly, a portion of the proceeds of the attachment made by them, is immaterial. Their liability is predicated upon the orders given by them to the sheriff to attach and the undertaking by them to indemnify him; and for all things done by him in good faith and in the legitimate pursuance of such orders, they are responsible up to the time they gave notice that they desired that he take no further steps. Randolph v. Blodgett, 17 N. H. 298; Nelson et al. v. Cook, 17 Ill. 443-449; Gower v. Emery, 18 Me. 79; Nelson et al. v. Cook, 19 Ill. 440-453; Clark v. Randall, 9 Wis. 135. Appellee Henry W. Price, in addition to what is urged by the other appellees, insists that he is not liable to contribute, because no part of the proceeds of the attachment actuaUy came to his hands. A portion of the proceeds was paid to his attorney, and the fact that his attorney proved false to the trust reposed in him and failed to pay over what he had received to Mr. Price can not affect his liability. Price has a claim against his attorney, the amount of which it is to be hoped, at no distant period, he will be able to realize. Where attaching creditors, acting in concert, sue out attachments in good faith, exercising such prudence and caution as an ordinarily prudent person would exercise, with no intention of committing trespass or injuring any one, and with the honest belief that their attachments can he maintained, the concerted act is not such a tort as forbids one of the creditors who has paid a judgment against him, for the unsuccessful, and, as found, legally tortious act of all, to insist upon contribution from his co-tortfeasors. Farwell et al. v. Becker et al., 129 Ill. 261. The decree of the Circuit Court is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion. Reversed and remanded.