Hussey v. Collins , 30 Me. 190 ( 1849 )

Sheplet, C. J.

— The declaration alleges in substance, that the defendants by a written contract, made on December 30, IP 15, agreed to defend an action commenced by Levi Hunnewell against the plaintiffs free of expense to them; and to save them harmless from all damages occasioned thereby. That Hunnewell recovered judgment against them at the Oct. term of the District Court in this county, in the year 1846, for the sum of $75,00, damages, and $26,57, costs of suit.

By an agreement of the parties the declaration is to be regarded, as stating the facts correctly, and it is further agreed, that the execution issued on that judgment against the plaintiffs has not been satisfied, and that neither of them has been arrested upon it.

There is no allegation or proof, that the plaintiffs had paid any thing on account of that suit, or that they had been otherwise injured thereby. The judgment may never be enforced against them. It may be, that the defendants have made arrangements to prevent it.

There must be proof of damage actually suffered, to enable one to maintain an action upon a contract of indemnity. Gardiner v. Cleaveland, 9 Pick. 336; Pond v. Warner, 2 Verm. 532; Morrison v. Berkey, 7 S. & R. 238; Reynolds v. Magness, 2 Iredell, 26; Brown v. Spann, 3 Hill, S. C. 324.

The contract declared upon is a contract of indemnity.

It is unnecessary to consider, whether it was made upon sufficient consideration. Plaintiffs nonsuit.