Berry v. Slocomb

The judgment of the court was pronounced by Slidell, J. This suit is brought to recover an amount expended for fees to counsel, under the following circumstances. Cox desired to appeal from a judgment. Berry agreed to become his surety on the appeal bond; and as his inducement to do so, the defendant executed in Berry's favor a written obligation, by which she bound herself to save him harmless. Berry was sued upon the appeal bond, employed counsel to whom he paid the amount now claimed, and defended the suit successfully. When suit was brought against him, Berry transmitted a copy of the citation to Mrs. Slocomb, reminding her of her obligation indemnify to him, stating also that ho had retained counsel, whose name he gave, and who would “cheerfully receive whatever aid or advice your [the defendant’s] counsel may think proper to give him.” It is quite clear that where one party thus agrees to hold another harmless, the latter may recover the costs and charges reasonably disbursed in consequence of a suit against him. See Mott v. Hicks, 1 Cowen, 538. But the defendant urges that Berry could have called upon her to employ counsel to defend him, had he wished or intended that the counsel’s fee should be paid by her; and that, upon her neglect or refusal so to do, that then only would she have been chargeable with the sum paid to counsel of his selection. "We are inclined to concur with the district judge in the opinion that Berry had a right to employ competent counsel of his own selection, unless, at least, a tender of suitable counsel was made by the defendant, which was not done. However, it is not necessary to decido this point. Berry notified her that ho 994 had employed counsel, whom he named. Her silence was an implied approval. See Hale v. Andrus, 6 Cowen, 225. We think the defendant has nothing to complain of. The counsel employed must be considered competent, for he was successful. The compensation paid to him is admitted to be moderate. If the defendant had' employed counsel herself, the result of the defence could not have been more satisfactory, and the expense, we must suppose, wauld-not have been lighter. Judgment affirmed.-