Tarr v. Northey , 17 Me. 113 ( 1840 )

The opinion of the Court w'as drawn up by

Emery J.

The defendant insists, that he is not liable to the plaintiff, the officer, who was induced to take the horse and hay upon an execution in favor of the defendant’s son, by the direction of the defendant, and his promise verbally that he wmuld indemnify the plaintiff for any damage that might arise to him for so doing. Reliance is placed upon the fact, that as the defendant was not the execution creditor, the promise was without consideration, and because not in writing, cannot he enforced in law.

It must often be extremely difficult for an officer accurately to distinguish the extent of the interest which a man may have in an execution, in which he may not be the nominal creditor, but nevertheless undertakes to give directions as to the mode in which it shall be served ; and that too, as may fairly be inferred, W'ith the assent or approbation, in this case, of the nominal creditor. And here too the relationship, by consanguinity, of tbe execution creditor, to the defendant, might well reconcile the officer to the conviction, that the defendant had good and legal grounds lor interposing and urging the plaintiff to go on under the indemnity promised by the defendant. We consider that there was a sufficient consideration for the engagement, that it was a direct original contract on the part of the defendant, and need not he in writing. But the defence is further attempted to be supported on the principle of a release from the obligation of the contract, if good, implied by law, from the subsequent act of the plaintiff in receiving an instrument under seal from Hosea Nor they, the execution creditor, by which he covenanted that he would indemnify the plaintiff from any damage which might arise to him in consequence of his taking the property aforesaid.

It is apparent from the report, that the plaintiff was unwilling to take the property, and was not satisfied that Hosea was able to indemnify him. And therefore the defendant assumed the direction as to the proceedings to be adopted, and quieted the plaintiff by the promise, which is the subject of this suit. It was not a joint contract, on the part of Hosea and the defendant with the plaintiff, but a several one'in the first instance on the part of the defendant.

Now we do not discover from the report that this covenant was given and accepted by the plaintiff in payment and satisfaction, or in discharge, of the defendant’s promise. And it never has produced the indemnify which the plaintiff is seeking. The excuse which the defendant made for not signing the instrument, that he wanted to be a witness, is evidence that he did not intend to involve himself in a joint undertaking with his son. And the idea that he then intended a trick, to evade responsibility, is irreconcilable with the fact, that he subsequently admitted his liability and his promise to indemnify the plaintiff.

We are bound therefore to give to the whole matter such a construction as will uphold the liability of the defendant, preserve the consistency of his professions, and the honor of his character, by considering the covenant by Hosea, as a mere collateral engagement, not understood by any of the parties as an extinguishment of the plaintiff’s right to seek redress from the defendant. There must therefore be

Judgment on the.verdict.