Henderson v. Sevey ( 1822 )

Meixen C. J.

delivered the opinion of the Court as follows.

Two reasons have been urged in support of the motion for a saew trial.

1. That the record of the judgment recovered in Massachu» setts by Conner against Henderson was improperly admitted iis evidence.

2. That the instructions of the presiding Judge to the jury were incorrect.

As to the first objection, it may be observed that the judgment was not admitted as conclusive between the parties, but only as competent evidence ; — and \ye cannot for a moment doubt that it was properly admitted. Indeed, it was the only admissible proof to shew that a judgment had been 'obtained against the plaintiff by Conner on the facts appearing on that record, and the amount of damages which had been recovered. — Parol evidence, if it had been offered to prove these; facts, would have been rejected ; — the record being higher and better evidence. There is no merit in this objection.

The second objection opens to view all the instructions given to the jury ; — but, in the argument, the counsel for the defendant has principally confined himself to the opinion given as to the plaintiff’s right to recover the expenses attending the trial of Conner v, Henderson, They were admitted to be reasonable, if a proper subject of charge in this action by way of damages. By the report it appears that nearly the same proof was used on both trials, as to the quality of the lime, and the principal facts. We apprehend that the question respecting the allowanee of these expenses depends upon the circumstances under which they were incurred — if indiscreetly or unnecessarily, the plaintiff has no claim on the defendant for reimbursement ^ according to the case of Fisher v. Fellows, 5 Esp. 171. — On the contrary, if he has been guilty of no, negligence or fault, he has such claim. — It appears that Henderson when sued by Conner, gave immediate notice to Sevey, the owner of the lime, — that he advised in preparing the defence,' — that Henderson defended the cause faithfully ; having had assurance from Sevey that the lime was good, and that he would succeed in the defence of Conners action. With these facts before us we do not perceive how the plaintiff.’s claim for a reimbursement of the expenses can be resisted. The plaintiff.has been in no fault, and fairly defended Sevey in the former action as far as law and evidence would justify, and under his advice and encouragement. — In Hathaway v. Barrow & al. 1 Camp. 151, the plaintiff would have been allowed to recover, by way of special damage, the costs of-petition to the Chancellor, had there not then been in force an order of the Chancellor for the payment of them, which the Court considered in that trial, as a satisfaction. And in Sumner, ad'x. v. Williams & al. 8 Mass. 222 — being an action of covenant broken, the Court allowed the plaintiff, by way o'f damages, the expenses he had incurred in defending an action brought against him by Dudley, as insepaimble from the claim of indemnity. See also Ramsey v. Gardner, 11 Johns. 439.

We do not think it necessary to notice particularly the objection as to the form of action. If we entertained any doubt on the subject, it iá not a question raised by the report of the case, oh a motion for a new trial.

On the whole, we are satisfied with the opinion and instructions of the Judge, and there múát be

Judgment on the verdict.