Thompson v. Taylor , 30 Wis. 68 ( 1872 )

The following opinion was filed at the June Term, 1870:

Cole, J.

We have no difficulty upon the point so fully discussed by counsel, as to whether the bond given by the defendants to Bartlett was only intended to indemnify him against any loss or liability which he might sustain upon such a bond as was required by the Illinois statute. The sole object of giving this bond of indemnity to him was to save him harmless from all loss or liability which he might sustain on account of any judgments obtained against the steamboat company, in the attachment suits, which he or those signing any bond or obligation for the release of the boat should be liable for and be compelled to pay. But this indemnifying bond did not alone contemplate the giving of the statutory bond, bnt any bond or other obligation “necessary and requisite to obtain a release of the boat.” Manifestly, the thing which the defendants desired to accomplish was the release of the steamboat “ Viola,” which had been attached in the state of Illinois. And they doubtless well knew that the boat could not be released from the attachments except by giving the proper bond, -under the Illinois statute, for that purpose, or by Bartlett or other parties giving the plaintiffs in those actions some satisfactory obligation to induce them to release the boat. So that upon the precise point argued here, namely, whether the language used in the indemnifying bond given by the defendants to Bartlett, only authorized him to execute the statutory bond, we fully agree with the counsel for the plaintiffs, that it did not so restrict him. Any bond, therefore, or other obligation, given by Bartlett, requisite and necessary to procure a release of the boat, would come within the language and intent of the bond sued on.

But we think no technical breach of the indemnifying bond is assigned in the complaint. The plaintiffs, we suppose, can have no greater rights upon the bond than Bartlett would have had if he had not assigned it to them. The condition of the bond is, in substance, that the obligors will well and truly pay or cause to be paid to Bartlett or assigns, their equal and exact portions of any and all judgments which might be obtained against the steamboat company in the attachment suits which Bartlett shall be liable for and compelled to pay, and shall save and hold Bartlett harmless from all loss or liability for or on account of any such judgments. Now it appears that Bartlett executed his bond to the plaintiffs in this suit (who were likewise the plaintiffs in the attachment suits in Illinois) conditioned, among other things, to pay whatever judgments the court might render in the attachment suits, or either of them, within ten days after the same should be rendered in case the same should be rendered against the steamboat company. And it is alleged in the complaint that upon Bartlett executing his bond to the plaintiffs, and upon his assigning to them the indemnifying bond given by the defendants as security for the performance of the conditions thereof, the plaintiffs agreed to release, and did release the steamboat Viola. Afterwards the plaintiffs obtained the judgments mentioned in the complaint against the steamboat company, which remained wholly unpaid by Bartlett or the defendant therein.

It is not very obvious to our minds what it is the plaintiffs rely upon as constituting a breach of the bond given by the defendants. Their right of action upon the bond we have assumed is not greater nor more complete than would be that of their assignor. Suppose Bartlett had brought the action alleging a failure of the defendants to perform the condition of their bond. The question would at once arise, what was the condition they agreed to perform ? It was that the defendants would pay Bartlett or his assigns their equal and exact portions of any and all judgments which might be recovered in the attachment suits against the steamboat company and wbicb be bad become liable for and compelled to pay. Now there have been no judgments obtained against Bartlett upon his bond ; nor does it appear that be has been compelled to pay any judgments obtained agajnst the steamboat company. The precise thing wbicb the defendants undertook to perform was to pay their portions of any judgments against the company wbicb Bartlett might become liable for and compelled to pay, and to save him harmless from all loss or liability on account of any such judgments. What loss, what actual damage has Bartlett sustained wbicb be was to be indemnified against? And if there has been no breach of the bond so far as Bartlett is concerned, do the plaintiffs stand in any better position ? Can they maintain the action if be could not, and if so, upon what ground ? It seems to ns that the doctrine of Aberdeen v. Blackmar, 6 Hill, 324; Gilbert v. Wiman, 1 Comst., 550; Crippen v. Thompson, 6 Barb., S. C., 532, applies to the case. See also, Turk v. Ridge, 41 N. Y. R., 201.

We have felt it to be our duty to make these suggestions in regard to the sufficiency of the complaint, although that point is not made on the brief of counsel. The demurrer was to the answer, that it did not state facts constituting a defense or counterclaim. The demurrer searches back to the first defective pleading. And if the complaint is defective because no breach of the indemnifying bond is properly assigned therein, as it seems to us it is, then the demurrer should have been sustained as a demurrer to the complaint.

By the Court. — The order of the circuit court is modified so as to sustain the demurrer as a demurrer to the complaint.

DixoN, C. J. was absent.

Plaintiffs’ counsel moved for a rehearing on tbe ground that tbe court, in deciding upon tbe legal effect and construction of tbe bond in question, did not discriminate between an indemnity against damage on a liability and an indemnity against tbe liability itself, citing in support of the distinction, Smith v. The Chicago and Northwestern R. R. Co., 18 Wis., 18; Aberdeen v. Blackmar, 6 Hill, 324; Gilbert v. Wiman et al, 1 Comst., 550; Crippen v. Thomson, 6 Barb., 534; Turk v. Ridge, 41 N. Y., 201; Chace, Adm’r., v. Hinman, 8 Wend., 452.