Nelson v. Cook ( 1856 )

Scates, C. J.

The principle laid down in Merriweather v. Nixan, 8 Term R. 186, that there is no right of contribution as between tort-feasors, or trespassers, has been, and still is, recognized as unquestionable law. But this does not affect the right of indemnity where a right of indemnity exists.

There has been some little diversity of opinion, in the proper application of the rule of distinction, or exception to the general rule, in Merriweather v. Nixan, in agreeing upon the facts and circumstances, which raise the exception. I.regard the following distinctions, however, to be well settled and supported by authority. Where a party is employed in his usual course of business, as an auctioneer, or warehouseman,, to sell, or deliver goods, by one claiming to have right so to do, and the contrary is not known to the employee, he may have an action for an implied promise of indemnity, for the damages he may be compelled to pay to the true owner, for the trespass or conversion committed by such sale or delivery. Betts v. Gibbins, 2 Ad. and Ellis R. 57, (29 Eng. C. L. R. 37); Adamson v. Jarvis, 4 Bingh. R. 66, (13 Eng. C. L. R. 343); Story on Agency, Sec. 339.

But where one is employed or directed to do or commit a known crime, misdemeanor, trespass or wrong, and the employee or agent knows it to be such, an express promise of indemnity is void, being against the peace and policy of the law. Story on Agency, Sec. 339, (18 Law Lib. top 172); Brown’s Leg. Max. 328, 329, (25 Law Lib. top 211); Holman v. Johnson et al., 1 Cowp. R. 341; Coventry v. Barton, 17 John. R. 142.

Yet where the question of title to the property is one of doubt, controversy or uncertainty, or the act to be done is not an apparent wrong, and the person or agent employed or directed to do the act, -does not know that it is a wrong or trespass; in such case, he may sue and recover indemnity from his employer, upon an implied assumption to save him harmless for the act. See authorities last above, and note to Farebrother v. Ansley, 1 Campb. R. 348; Gower v. Emery, 18 Maine R. 83.

This relation, however, of principal and agent, or employee, is not raised by the simple delivery of a writ of capias, attachment, fieri facias and the like, to the officer, or his deputy. There is no implication of indemnity for their trespasses and wrongs in the execution, or attempt to execute process put into their hands, without any specific direction to do particular acts, or take particular goods under it. This is illustrated as between the sheriff and his deputy, in the case of Farebrother v. Ansley, 1 Campb. R. 343; and in relation to the liability of plaintiffs in process to the sheriff, by Wilson v. Milner, 2 Campb. R. 452; England v. Clark, 4 Scam. R. 486; Coventry v. Barton, 17 John. R. 142; Averill v. Williams, 1 Denio R. 502; Humphreys v. Pratt, 5 Queen Bench R. 820, referred to in 6 Mees. & Welsb. Exch. R. note 387, overruling the decision S. C. in 5 Bligh. N. R. 154; Marshall v. Hosmer, 4 Mass. R. 62; Bond v. Ward, 7 Mass. R. 123; Avery v. Halsey, 14 Pick. R. 174; Fitler v. Fossard, 7 Penn. State R. 540; Saunders et al. v. Harris, 4 Humph. R. 72. The facts in Gower v. Emery, 18 Maine R. 79, show a special direction, or will justify its inference, and what the court say, must be understood as upon the case before them.

Under these well settled principles, the defendant is not entitled to recover, upon an implied indemnity, nor without an express promise, or particular directions about the levy. Proof that plaintiffs endeavored to sustain the attachment upon the levy, is wholly insufficient for this purpose, and none other appears. Again, a recovery in trespass for taking, or in trover for converting chattels, followed by satisfaction, vests the property in the defendant: “ Solutio pretii emptionis loco habetur.” Adams v. Broughton, 2 Strange R. 1078; Note c to 37 Eng. C. L. R. top 164; Note a to 46 Eng. C. L. R. top 640; Cooper v. Shepherd, 3 Mann, Grang. and Scott R. 266, (54 Eng. C. L. R. top 265.)

Thus treating the sheriff as agent, in whom the property was vested by the recovery, for the benefit of the plaintiffs, his principals, he may forfeit his title to repayment of his advances and disbursements, by his own gross negligence, fraud or misconduct, and be excluded from all remedy against his principal. Story on Agency, Sec. 348.

The defendant misapplied the property, and converted it to his own use by a sale and payment.to another, of the proceeds.

Judgment reversed and cause remanded.

Judgment reversed.