48 P. 168 | Or. | 1897
after stating the case in the foregoing language, delivered the opinion of the court.
In Ham v. Hill, 29 Mo. 275, under a similar state of facts, where the covenant was “to assume all partnership liabilities of said firm incurred between April 1, 1858, and July 1, 1858, and to pay the same whenever payment is demanded legally by the creditors of said firm,” Ewing, J., speaking for the court, said: “As to the measure of th; damages in this case, if the plaintiff is entitled to recover, we see no reason why he should not recover the sum due by the bond. Of course, if the bond has been paid in part, or otherwise satisfied, the defendant will be enlitled to the benefit of such payment or satisfaction. The presumption is that the plaintiff gave full consideration for the bond, and, if it is not discharged, the defendant should pay the amount of it.” In Furnas v. Durgin, 119 Mass. 500 (20 Am. Rep. 341), there was an exchange of lards, and the defendant accepted of plaintiff a deed to Hyde Park Estate, containing this clause: “Subject to mortgages amounting to $6,500, which the grantee hereby assumes and agrees to pay.” Among these mortgages wis one for $1,500, for the non-payment of which plaintiff brought an action to recover the amount thereof. Devens, J., says: “There is an embarrassment, undoubtedly, where the agreement is to pay a debt due from the promisor as well as the promisee. * * * As the Hyde Park estate, now the property of the defendant, is charged
Whether the defendants’ obligation is an absolute promise to pay, or merely an undertaking to indemnify and save harmless, depends upon the construction of the instrument by which they are bound. In Locke v. Homer, 131 Mass. 93 (41 Am. Rep. 199), it was held that the acceptance by the grantee of a deed poll containing a covenant that the land conveyed is free from incumbrances except a certain mortgage “which the grantee assumes and agrees to hold the grantor harmless from,” constituted a contract by the grantee not merely to indemnify the grantor, but to pay the mortgage debt, and that the measure of damages in an action upon this contract was the unpaid amount of the debt, although no part of it had been paid by the plaintiff, the grantor. In Gage v. Lewis, 68 Ill. 617, the condition of the bond was “that if the said Carhart should pay all of said debts, claims, and demands due or to become due by the said firms of Carhart, Lewis & Co., and Carhart, Lewis & Tappan, to any and all persons whatsoever, * * * and save, indemnify, and keep
As covering the doctrines hereinbefore announced, as well as the construction of the instrument sued on, the following language of Church, C. J., in Lathrop v. Atwood, 21 Conn. 116, is direct and pertinent. He says: “We think an examination of the cases will show these reasonable doctrines; that if a condition, covenant, or promise be only to indemnify and save harmless a party from some consequence, no action can be sustained for the liability or exposure to loss, nor until actual damage, capable of appreciation and estimate, has been sustained bv the plaintiff. But if the covenant or promise be to perform some act for the plaintiff’s benefit, as well as to indemnify and save him harmless from the consequence of non-performance, the neglect to perform the act, being a breach of the contract, will give immediate right of action.” See also Dye v. Mann, 10 Mich. 291; Reed v.
There is a rule which requires a party entitled to the benefit of a contract to protect himself from loss arising from a breach, if it can be done at trifling expense, or with reasonable exertion, and restricts him to such damages only as with reasonable endeavor and expense he could not prevent: Miller v. Mariner's Church, 7 Me. 51 (20 Am. Dec. 341). It has been held, however, that the rule is not applicable to a contract of the nature we are considering, where there was in effect an absolute promise to pay, and not cne of indemnity merely: Wicker v. Hoppock, 73 U. S. (6 Wall.) 94. Plaintiff, of course, was aware of the foreclosure sale, and he could, if he had seen fit, perhaps have secured the sale of defendants’ lots first; and if they did not sell for enough to satisfy the mortgage, he could have paid the balance, and this balance, under the rule above discussed, would have been the measure of his damages. The defendants, however, became the principal debtors, as between them and the plaintiff, when they assumed the payment of the $5,712 upon the mortgage, and the plaintiff remained simply as surety for them. The lots conveyed to the defendants
Affirmed.