Wilson v. Smith

l. bond : for indemnity: right of action, I. In the progress of the trial, the defendant offered to prove that Bicketts was insolvent at' the time he gave his note to the plaintiff, and for which , . . . the plaintiff entered satisfaction of the judgment of Nutter against Bicketts, and that he continued 'to be insolvent thereafter. This evidence was objected to by the plaintiff and .excluded by the court;, sirch ruling is now assigned as error.

It is true, as claimed by defendant’s counsel? that there are two classes of indemnity bonds; one, conditioned to save the obligee from any damages, and the other, to save him from any liability.

The bond in this case is of the class first named, and no right of action exists thereon until the obligee by the *256payment of the judgment or some part thereof has been damaged. The right of action upon the other eiass of bonds would accrue without paying the judgment. It is laid down in Parsons on Contracts (vol. 3, p. 185) that no action can be maintained by the obligee upon the first, named class of obligations, before paying the debt or liability, unless he can show that he has given his own notes, or made other arrangements in the way of acknowledging and securing the debt, which are equivalent to its payment.

If the plaintiff had taken from Ricketts his promissory note in payment and satisfaction of the judgment, it would be wholly immaterial whether Ricketts was insolvent or not, and if he had not so taken it, of course the evidence would be immaterial. There was no error therefore in excluding the evidence offered, since it was immaterial in any7 event.

a_payment by note. II. The court, at the instance of the plaintiff, instructed the jury7.that if they believed from the evidence “that Ricketts had paid the judgment, either by giving his note for the amount or otherwise, etc., * * then plaintiff was entitled to recover;” and also modified -the instruction asked by defendants so as to express the same rule as to payment by note.

The defendants excepted to the giving of the plaintiff’s and the modification of the instructions as asked by them. The rule of law, as given by the court, is fully sustained by the authorities. • See 3 Parsons on Contracts, 185, cited above, and also Lyon v. Northrup, 17 Iowa, 314.

III. It is claimed that the verdict was contrary to the evidence, because the jury did not allow defendants’ set-off as pleaded by them. Upon that the evidence was conflicting, and, besides, the verdict does not seem to us to be against the weight of the evidence.

Affirmed.