Campbell v. Rotering

(ttt.ett.TiAn, C. J. In this case the plaintiff, a police officer of the city of Minneapolis, and as such authorized to execute writs and process issuing from the municipal court of that city, received an execution issued from said court, and levied the same upon personal property. Another than the execution debtor claimed the property from the plaintiff, and thereupon the creditor in the execution as principal, and the other defendants herein as sureties, executed to the plaintiff an indemnifying bond. The defendant Rotering, the appellant, objects to this bond that, although signed and sealed by him, his name does not appear in the body of it. But it is not always essential, in order to bind one by a contract, that his name shall appear in the body of it, if there is enough in its terms, in connection with the signing, to show that he intended to be bound. For instance, where, as in this case, it reads, “We,” then stating the obligation or undertaking, it is, if there be nothing else to show the contrary, the contract'of the parties who execute it. For what purpose does the party sign and seal, except to be bound by it? See Ex parte Fulton, 7 Cow. 484; Decker v. Judson, 16 N. Y. 439; Perkins v. Goodman, 21 Barb. 218; Dair v. U. S., 16 Wall. 1. There is not enough, in the mere fact that Rotering’s name was not in the body of the bond, to put the obligee on inquiry, so as to charge him with notice that, after signing and sealing, and before delivery, the former refused to let it go any further, if such were the fact. The condition of the bond is : “Now, therefore, in ease the said C. F. Hummell shall fully indemnify and save harmless said J. C. Campbell, police officer, from all damages and costs by reason of said claim of said above-named claimant, and shall pay all costs and damages to which said police officer may be put by reason thereof, then this obligation shall be void,” etc. According to all the authorities, an undertaking to “indemnify and save harmless” gives no right of action until the party indemnified is actually damaged, i. e., has been compelled to pay, and has paid, by reason of the thing against which or consequences of which he is indemnified. The doubt on this bond arises upon the words, “and shall pay all costs and damages to which said police officer may be put by reason thereof.” Are they to be construed as an undertaking to prevent him becoming lia 117 ble for damages and costs, or discharge or acquit him from such liability if it accrue against him, or are they intended only to indemnify him against damage? In Weller v. Eames, 15 Minn. 376, (461,) the bond was to indemnify against “legal liability,” and it was urged that it was an undertaking to prevent liability accruing against the obligee, or to discharge and acquit him from it, if it had already accrued. But the court held it an indemnity only against actual damage, and that a judgment recovered against the obligee, not paid, did not show actual damage. In this case the expression, “costs, and damages to which said officer may be put,” is not stronger than the terms of the bond in that case. Could the officer be said to be put to costs and damages, when he has become liable to but has not paid them? We think not. A slight change in the phraseology might produce a different result, as if it were to pay all costs and damages which he may become liable to, or (perhaps) which, he may incur. In such case, the obligation to pay would be fixed by the obligee’s becoming liable. But, as it is, we think the obligation was to pay the obligee, not to pay somebody else; and it was fixed only when he had sustained actual damage, i. e., had been compelled to pay. Order reversed.