Jones v. Wolcott

We do not find in the statements contained in the bill of exceptions that there was any irregularity in the proceedings, or any inaccuracy in the rulings and instructions of the presiding judge upon the trial. The action was brought to recover remuneration for losses sustained and expenses incurred by the plaintiff in consequence of his having been misled by the false representations of the defendant that he was authorized to make and execute the written contract of indemnity, referred to in the declaration, in the name and as the agent of the several parties who purport to be bound by it. It is not objected by the defendant that, upon proof of the facts alleged in the declaration, the action cannot be maintained, but he complains of the rulings of the court in reference both to the admission and the rejection of evidence offered, and also of the instructions *251concerning the facts which it was incumbent upon the plaintiff to prove, in order to maintain it, and the damages which in that event he would be entitled to recover.

It was admitted that the written contract which was produced upon the trial was in fact signed by the defendant. Evidence was produced by both parties upon the question whether he had authority so to make and execute that instrument, or whether having done so his acts had subsequently been ratified or affirmed by the parties purporting to be his principals. The instructions of the court, that, to justify the jury in returning a verdict for the plaintiff, they must be satisfied upon all the evidence before them that the defendant had no right, either from previous appointment or subsequent ratification, to sign the contract as attorney for the parties in whose behalf it purported to be executed; that he falsely pretended that he had such authority, knowing that he had not, or having no reason to suppose that he had; and that the plaintiff’s insolvent upon the faith of that representation proceeded to perform official acts and thereby to incur liabilities, and that by so acting and being so misled he had sustained loss and damage, appear to us fair and correct. Jefts v. York, 10 Cush. 395. Indeed the defendant, though complaining of the instructions, has wholly failed to point out any particular in which they were defective or objectionable.

2. The defendant offered upon cross-examination of the plaintiff, who was a witness upon the trial, to show that the written contract was intended to indemnify him against the claim of one Richmond to the attached property, and for no other purpose. But this was excluded, and very properly, because it was a proposal to vary, control and change the meaning and effect of the terms of the written contract."

3. As to the construction of the contract, the court ruled that by its terms it was an agreement on the part of the obligors to indemnify the plaintiff against the loss and damage which should result or accrue to him by reason of the levy on execution and attachment on writs which he had then made on the property of the Cheshire Iron Company, and did not protect him against the consequences of his acts under other processes which he *252subsequently received. Being thus carefully limited, it was certainly sufficiently favorable to the defendant, and cannot therefore afford him any ground of exception.

4. In regard to the question of damages, it was rightly held that the. plaintiff, if entitled to recover at all, was entitled to recover such sum as would be a complete indemnity for all the losses which resulted to him directly from his failure to enforce the contract against the parties by whom it purported to have been made. This general proposition has not been contested by the defendant, but he insists that evidence bearing upon this question was admitted which should have been excluded.

Upon a careful analysis of the statements in the bill of exceptions, it appears that the plaintiff and J. Q,. Robinson were both deputies of E. F. Ensign, sheriff of the county of Berkshire; that Robinson, by virtue of a writ in favor of the Western Railroad Company, had attached certain iron and stoves, the property of the Cheshire Iron Works, and that afterwards the plaintiff, by direction of the defendant, seized and took away from the possession of Robinson the same iron and stoves, by levy on the executions and attachment on the writs referred to in the' contract of indemnity. Robinson, by force of his attachment, having acquired a special property in the stoves and iron, and being bound to account for the same to the owner, was entitled to recover the full value thereof against Howland. Instead of bringing his action directly against Howland, for this purpose he instituted a suit against the sheriff for the unlawful act of his other deputy, and recovered judgment for the value of the property taken from him. Robinson v. Ensign, 6 Gray, 300. Mr. Ensign then brought a suit against Howland and his sureties, and obtained judgment for the amount of the judgment of Robinson against himself. The court ruled that this judgment which was paid by the plaintiff, was one of the elements of damage to be considered in ascertaining the amount for which the defendant was liable to him; but that if that judgment consisted in any part of damage resulting from attachments made by the plaintiff subsequent to the execution of said contract, that part must, not be allowed, but should be deducted from *253its amount, if it could be ascertained. But that if it could not be ascertained, then the rule of damages might be the amount of all the judgments in favor of the nominal and supposed parties to said contract, to the payment of which the proceeds of the property taken by the plaintiff on said writs and executions had been applied. The effect of this rule was simply this, that the defendant was liable to the plaintiff not for the full value of the property which he had taken from Robinson, and which the latter might have recovered, but only for so much as was actually received by the plaintiff upon its sale and applied to the .satisfaction of the judgments obtained in the suits to which the contract of indemnity applied. In this view it clearly appears that the ruling was unobjectionable ; for as the plaintiff was to be indemnified against the claim of Robinson, and his claim being for the full value of the stoves and iron, no injustice could be done in holding him responsible for the proceeds of its actual sale, which of course could not have exceeded that value. To ascertain this amount, therefore, it was essential to show the record of judgment, the executions and levies thereon in these cases; for this was the only competent proof upon which the plaintiff could rely to show the appropriation as well as the amount which was in fact obtained, upon conversion and sale of the property. For this reason it is obvious that the objection of the defendant to the admission of such evidence was unfounded.

5. To the elements or items of damage already considered, tne court instructed the jury that there should be added, in making up their verdict for the plaintiff", the expense to which he was put in defending the sheriff against the suit of Robinson, the expense incurred by him in prosecuting his own suit against the supposed parties to said contract of indemnity, the costs recovered therein against him, and a reasonable compensation for his own time and services, exclusive of his fees as a witness upon the trial, in defending and conducting said suits, and also interest on the entire amount of all his losses and expenses from the time they were incurred up to the time of finding the verdict. The only part of this instruction to which any objection has *254been made is that which relates to the rule prescribed respecting interest. But that his indemnity should be complete, it is necessary that the plaintiff should have interest upon all the money which he was compelled to advance. For all the advances which he was obliged to make, he was entitled to be immediately repaid; arid, according to the general rule in all similar cases, he should be allowed, as he would have been in a suit for the money, to recover interest as damage for its detention. The objection to the instruction on this account cannot therefore be allowed to prevail.

If there were any other exceptions taken by the defendant at the trial besides those which have already been considered, they were not argued or adverted to at the argument upon the questions of law arising upon the bill of exceptions, and they must therefore be regarded as having been waived or abandoned.

,Exceptions overruled.