Stout v. Folger

Day, J. 1. action : assumption of indebtedness. I. It is claimed by defendant that his contract is merely to save plaintiff from harm by reason of his indebtedness, and that, until plaintiff has paid the debt, he is not damnified, and cannot recover. We have examined the numerous authorities cited in defendant’s brief, and while they áre not altogether free from confusion, yet we think underlying them will be found the following doctrines: That if a condition or promise be only to indemnify and save harmless a party from some consequence, no action can be maintained until actual damage has been sustained by the plaintiff. But if the covenant or promise be to perform some act for the plaintiff’s benefit, as well as to indemnify and save him harmless from the consequences of non-performance, the neglect to perform the act is a breach of contract, and will give an immediate fight of action. See Lathrop v. Atwood, 21 Conn. 116. The authorities agree that upon an undertaking to pay a debt due a third person, the plaintiff may maintain an action without showing that he has paid the debt. Lathrop v. Atwood, supra; In re Negus, 7 Wend. 499; Port v. Jackson, 17 Johns. 239; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Denio, 321; Wilson v. Stilwell, 9 Ohio, 467; Redfield v. Haight, 27 Conn. 31. The petition alleges that at the time the agreement sued on was made, there was an outstanding indebtedness of the Des [75] Moines House to Patrick Gill & Co., and that since the making of said agreement- the .plaintiff has been sued thereon, and his property ha,s been attached. The defendant’s agreement contains two distinct stipulations: First, he agrees to assume, in plaintiff’s place and stead, all indebtedness contracted by plaintiff, and outstanding against the Des Moines House;, Second, he agrees to save the plaintiff harmless from all such indebtedness. It is a canon of interpretation that a contract is to be so construed, if possible, as to give effect to all its terms. The construction of defendant ignores a part of the agreement, and gives effect only to the undertaking to save harmless. At the time the agreement was made an indebtedness contracted by the plaintiff was outstanding against the Des Moines House. This debt the plaintiff was under legal obligation to pay. This obligation defendant agreed to assume. He undertook to substitute himself in the “ place and stead of plaintiff.” Hence the obligation to pay resting upon plaintiff, defendant agreed^ to assume. We do not see wherein his contract differs from an absolute undertaking to pay this debt. Hence his contract falls within the principle of the cases above cited, and plaintiff may maintain an action upon showing a failure to pay as agreed. It follows that the demurrer was properly overruled. 2.-measure of damages. II. The question as to the amount of plaintiff’s recovery has been incidentally argued, and as it m¡ay arise in the fisher progress of the case, we deem it proper to dispose of it here. Two cases cited by appellant, Israel v. Reynolds, 11 Ill. 218, and Dye v. Mann, 10 Mich. 291, hold that the plaintiff can recover nominal damages only. These cases make the statement simply without any reasoning or citation of authorities. We believe the position to be Opposed to the weight of authority and reason. In Lathrop v. Atwood, supra, this precise question was [76] presented, and Church, Ch. J,, announcing the opinion of the court, said: “Notwithstanding, all the defendants insist that, although they have violated their engagement, and have thus given to the plaintiff a right of action against them, they are liable only for nominal damages, because the plaintiff has neither paid any of these debts before suit, nor been subjected to actual loss or damage by reason of the defendants’ neglect, and the defendants, or Lathrop, one of them, remains still liable, and may be subjected at the suit of the creditors to the payment of the claims, and thus subjected twice. All this may be; but by whose fault? Not the plaintiff’s. The very reason why the plaintiff required and the defendants agreed to pay these debts, was to exonerate and relieve the plaintiff from any preparation or pains-taking for the payment of them. The defendants received and have put into their pockets the means of paying, and, holding on to these, they now say, we will neither pay to the plaintiff nor to the creditors. A judgment for nominal damages would give the sanction of law to this unjustifiable claim. The cases we have referred to as sustaining this action, all, impliedly at least, oppose this claim of the defendants, and several of them very explicitly.” Citing Ex parte Negus, 7 Wend. 499; Crofut v. Moore, 4 Verm. 204; Atkinson's Ex'rs v. Coolsworth, 8 Mod. 33. The case of Port v. Jackson, supra, is to the same effect. See, also, Ham v. Hill, 29 Mo. 280. Following these authorities, our opinion is that the plaintiff may recover the amount agreed to be paid. 3. Attachment: amendment. III. In sustaining the motion to quash the writ of attachment, the court, in our opinion, erred. It may be conceded, as claimed by defendant, that the . . , , , . . affidavit is essential, and that a writ issued without it is void. But here it is rendered reasonably certain that the petition was sworn to before the attachment issued, and the failure of the plaintiff to sign the affidavit, [77] and of the officer to sign the certificate, resulted merely from oversight consequent upon the haste in which the act was done. Before the motion to quash was passed upon an amended petition was filed, which was properly sworn to, alleging that the causes of attachment existed at the time the writ was obtained.' The plaintiff, therefore, was in no way prejudiced, and as between him and the defendant the attachment should have been sustained. How the intervenor is to be affected by these proceedings we need not now determine. It does not appear from the abstract that any ruling adverse to his rights has been made, nor that he has prosecuted any appeal. The fact that he has a lien upon the property would not entitle him to have the attachment dissolved. The judgment of the court below is; upon the appeal of defendant, affirmed, and upon plaintiff’s appeal Reversed.