Philbrick v. Shaw , 63 N.H. 81 ( 1884 )

Doe, C. J.

The defendant having an execution against Kayes, directed Haynes, a deputy sheriff, to levy it upon certain property of Kayes, and gave the officer a bond to indemnify him against all loss, cost, and damage that should be caused by his obeying Shaw’s order to make the levy. The bond of indemnity is written evidence of a promise that would be implied from the defendant’s order. Smith, as well as the defendant, having an attachment of the property, and a controversy arising between them as to priority of attachment, the defendant necessarily assumed the responsibility of maintaining his own precedence. In that controversy Shaw and Smith were the only parties in interest. In paying the defendant’s execution out of Kayes’s property, Haynes acted as the defendant’s agent: his legal fee was what it would have been if he had paid the proceeds of the property to Smith instead of the defendant. As between Shaw and Haynes, and for the purpose of this suit, the levy was the act of Shaw. Philbrick, as surety on the officer’s official bond, occupied a position as disinterested as that of the officer, and is protected by the bond given by Shaw. If Haynes were alive and solvent, and the j udgment which Philbrick paid had been rendered against Haynes and Philbrick, a suit of Philbrick against Haynes, and another suit of Haynes against Shaw, would be unnecessarily circuitous. Philbrick’s remedy is not destroyed by the insolvency and death of Haynes.

The bond given by the defendant was to indemnify the officer against the consequences of his levying the defendant’s execution for the defendant’s benefit in obedience to the defendant’s order. It does not contain a stipulation that Shaw is not bound to indemnify him unless the priority of Smith’s attachment is established in a suit in which Shaw is a party of record, or in a suit which Shaw is notified to defend. The obligor and obligee understood that, if the question of priority was litigated, it would be tried in a suit brought by Smith; and that, whomever Smith should sue, Shaw’s defence of the action should not be prevented by Haynes’s withholding information or consent. They did not understand that Haynes was to assume the defence, or notify Shaw to assume it. Their understanding was stated in the bond; and the bond did not put upon the disinterested officer the duty of resisting any suit for the benefit of the interested creditor, nor require the former to serve upon the latter a formal summons to attend to his own business of maintaining the priority of his lien. The bond did not make it material in what suit the question of priority was raised. It was a matter of indifference to Shaw and his officer whether Smith brought his suit against Shaw, Haynes, or Burnham. Against whomever he might elect to bring it, the question of priority would be the only matter in controversy; and on that question, as Smith would be sole plaintiff in interest, so Shaw would be sole defendant in interest. The bond contains no evidence that the parties understood the obligee was to do anything more than give the obligor such necessary information and consent as he could give to enable the obligor to properly defend the anticipated suit.

The obligee did all he undertook to do. He withheld neither information nor consent. He put no obstacles in the way of the obligor’s maintaining the priority of his lien. Shaw, knowing that Smith had exercised his right of bringing his suit against Burnham instead of Shaw or Haynes, was bound by his bond to defend Haynes against all loss, cost, and damag’e that might fall upon him from that suit. The non-assumption of the defence by the sole defendant in interest was a neglect of his duty; and by his neglect he has prolonged, through three successive suits, a controversy that shoirld have been settled in the first one. In the first suit, Smith v. Burnham, neither Shaw, nor Haynes, nor Philbrick was a party of record: and neither Haynes nor Philbrick had any more control of it than Shaw. If Shaw was not concluded by the judgment because he was not notified to assume the defence, Haynes and Philbrick were not concluded by it, for the same reason. And if for that reason Philbrick could have contested the priority of Smith’s attachment in Burnham v. Philbrick, for the same reason Shaw could have contested it in the same suit; and having been notified to defend, he is bound by the judgment. It is therefore immaterial whether Shaw is, or is not, concluded by the judgment against Burnham. The plaintiff contends that the judgment against Burn-ham, satisfied by Burnham, and the judgment in Burnham v. Philbrick, satisfied by Philbrick, are the damage against which the defendant agreed to indemnify the officer, as the burning of insured property is, not an estoppel, but conclusive evidence of the damage against which the insurer agreed to indemnify the insured. Parker v. Lewis, L. R. 8 Ch. 1035, 1058, 1060. If such is the law, Shaw was bound to indemnify Philbrick without being requested to defend any suit of which he had knowledge, and which he would have been permitted to defend. If such is not the law, and if Philbrick and Shaw are not concluded by the judgment against Burnham, they are equally estopped by the judgment in Burnham v. Philbrick, the defence of which Shaw, being formally cited, was bound to assume.

The defendant’s officer, obeying his order, was not estopped, and the officer’s surety is not estopped, by the officer’s returns of the attachments and executions, to claim the indemnity promised by the defendant.

The defendant offers to prove that the officer induced him to give the bond by asserting the priority of the defendant’s attachment. Such evidence cannot vary the bond, reverse the contract, and put upon the obligee the responsibility assumed by the obligor. The defendant agreed to indemnify the officer for obeying the defendant’s order. That is the legal meaning of the bond; and that meaning cannot be controverted by parol in this action. The defendant offers to prove that a fraud was perpetrated, not upon Smith, but upon the defendant. But it is not expedient to determine the possibility of such a fraud in a hypothetical case. The evidence will be received ; and if any facts are found which the defendant claims amount to a fraud upon him, the law of that part of the case will be considered If such facts are not found, the plaintiff will be entitled to a decree.

Case discharged.

Blodgett, J., did not sit: the others concurred.