Chilson v. Downer

27 Vt. 536 | Vt. | 1855

The opinion of the court was delivered by

Redfield, Ch. J.

The only question made, or decided, by the court below, seems to have been, whether the bond of the defendant bound him to pay any portion of the expenses of defending suits brought against the plaintiffs, and which did not prevail. There is no doubt this is the extent of the obligation imposed by ordinary covenants of warranty against adverse claims of title, that it extends only to legal claims. But it is competent for a party to bind himself to defend against all suits and claims, whether false or not. That is ordinarily a matter of contract, or construction. The courts will construe such an undertaking as extending only to legal claims, where that is consistent with the words.

But in the present case, the words of the obligation are very extensive. “ If the said Downer shall indemnify and save harm- “ less the said plaintiffs, from all liability, costs and expenses, in “ consequence of making said attachment, and the sale on said “ execution, of the property selected.” The liability is no doubt a liability for the sale of the property selected by the defendant. This part of the contract the defendant did perform; but the costs and expenses, in consequence of making the attachment, seems to us to cover all costs and expenses growing out of such attachment, and the consequent litigation, which seems to have been anticipated, and probably from the quarter from which it came. We think, therefore, the court did put the proper construction upon the bond, and as the defendant undertook for all costs and expense of litigation, in regard to the property sold, he must run his own risk as to the shape in which it arises. It does not appear but the claim came from the quarter anticipated, or but it came in the form in which it was natural to expect it. But, although it failed, yet in consequence of being joined with other property, the plaintiffs could not recover the costs they had incurred in defending this property. But that is the law of this state, absurd as it is, and the defendant was bound to know that, and if he gave a bond to indemnify against all expense to the plaintiffs, in consequence of the attachment of this property, he would be thus exposed, and we do not see why this expense does not come fairly within the range of this contract. It seems to have been one of the contingencies, to indemnify against which, the bond may fairly be presumed to have been taken, judging from the words used with reference to the subject matter, and the contemporaneous circumstances, which are always legitimate grounds df construing contracts.

Judgment affirmed.