Holmes v. Weed , 19 Barb. 128 ( 1854 )

By the Court,

Johnson, J.

Upon the facts found by the referee I am clearly of opinion that he erred in bis conclusions of law, and that the action was properly brought. The promise upon which the action was founded was in writing, and upon a good consideration upon its face. By the agreement, the defendant undertook with the plaintiff to pay to the two Walkers and Hovey, for carrying the mail over the route, designated in the contract between the plaintiff .and the post office department, according to the agreement between the plaintiff and the Walkers and Hovey for performing that service. This contract between the plaintiff and the department had beeno previously assigned to the defendant by the plaintiff. On the first of January, 1845, as the referee has found, the defendant surrendered the contract thus assigned to the department, and took a new one, in his own name, for carrying the mail over the same route. The contract on the part of the Walkers and Hovey was with the plaintiff and one Wadhams, and by it they bound themselves to carry the mail over specified portions of the route, until the 30th of June next ensuing, for the compensation fixed, which the plaintiff and Wadhams agreed to pay. The Walkers and Hovey proceeded and carried the mail according to their agreement until the 30th of June, and received their pay up to the commencement of the last quarter. To recover the stipulated compensation for carrying the mail the last quarter, they brought their actions severally upon their contract, against the plaintiff and Wadhams, and recovered, and the amount of the several judgments was collected or paid by the plaintiff upon the executions issued. ”

It is clear enough, I think, as the case stands here, that the Walkers and Hovey had each a good cause of action against the plaintiff and Wadhams. The contract between them had not been rescinded or affected in any way by the assignment of the contract between the plaintiff and the department to the defendant, or by the cancelment of that contract and the taking of a new one in the defendant’s own name. The Walkers and Hovey were no parties to this arrangement, and they had gone on and performed their agreement. They knew neither parties were privies to the new arrangement, and no fact is found by the referee, nor does any thing appear in the evidence, from which it can be inferred that they ever consented to surrender or cancel their agreement, or that they were ever requested to do so. On the contrary, the agreement on which this action is brought shows that it was contemplated by the defendant that they should go on and perform it. His agreement was to pay if they performed. At all times after the assignment the service was performed for the benefit of the defendant, but the plaintiff was not absolved from his liability to pay. The assignment operated to make the defendant the principal in the business, and the plaintiff his surety, to the Walkers and Hovey. This was clearly the legal position in which the parties to this action stood, in reference to each other, from the moment the assignment was made, and the agreement upon which the action is brought was executed. In this view, the defendant’s undertaking must be regarded as an agreement to indemnify the plaintiff and save him harmless from these claims. The law will imply a promise to indemnify, in favor of a surety against his principal, if none is expressed, to prevent injustice.

[Monroe General Term, December 4, 1854.

Johnson, Welles and T. R. Strong, Justices.]

The plaintiff’s right to recover was not affected by his neglect to give the defendant notice of the actions against him. (Lee v. Clark, 1 Hill, 56. Duffield v. Scott, 3 T. R. 374.) Nothing more than the amount actually due the Walkers and Hovey appears to have been recovered by them of the plaintiff, and nothing is shown to raise any suspicion of collusion or unfairness toward the defendant in that litigation.

The defendant was bound to see these persons engaged in his service paid, and not to suffer the plaintiff to be sued. And as he did not, and the plaintiff was sued, he is entitled to recover the amount he was compelled to pay. The judgment of the special term must therefore be reversed, and a new trial ordered, with costs to abide the event.