186 Mass. 54 | Mass. | 1904
The judgments against the city of Cambridge established its liability, and there rested upon it the duty of paying them. If it had paid them, then, upon the agreed facts, it would have had a right to recover either against the metropolitan water board representing the Commonwealth, or against the defendants. If it had proceeded against the defendants and
It is urged, however, by the defendants, that the city met with no loss because the judgments were paid, not by it but by the Commonwealth. But this manner of payment can make no difference. To hold that the rights of the Commonwealth were unfavorably affected by its payment of the judgments instead of waiting for the city to pay and then paying the city, is to lose sight of the substance of the transaction. The city of Cambridge was under the weight of the liability established by the judgments, and was called upon to discharge them. It was the duty of the Commonwealth to relieve the city from that load. The money was paid by it, not in the discharge of ai'ny duty due from it to the judgment creditors, but in the discharge of its duty to indemnify and protect the city, and the simple fact that the payment was made directly to the judgment creditors cannot make the transaction any the less one of indemnity. So far, therefore, as respects the amount of the judgments, the Commonwealth is subrogated to the right of the plaintiff against the defendants.
But as to the counsel fee of $1,000 paid by the Commonwealth to Mr. Pevey, the-case is different. It is plain upon the agreed facts that the Commonwealth assumed the defence of the cases and hired Mr. Pevey as its counsel, and that the above sum was paid to him as such and not as city solicitor of Cambridge. It is true that he was the general solicitor of Cambridge which paid him an annual salary, but he was not under the exclusive employ of the city. He had the right to engage in business outside of his work as city solicitor, and such always had been the custom of his predecessors. Under these circumstances he was employed by the Commonwealth. It is the same as though
Judgment reversed and base remanded to Superior Court, with instructions to enter judgment only for the amounts paid on the judgments with interest.