53 Mass. 130 | Mass. | 1846
1. The first question I propose to consider is, whether the claim of the plaintiffs is barred by the statute of. limitations.
In the case of a mere promise of indemnity, the statute of limitations begins to run from the time the promisee actually pays the money, and not from the time he becomes liable for the payment of it. Angelí on Lim. (2d ed.) 116. Colvin v Buckle, 8 Mees. & Welsb. 680. Jones v. Trimble, 3 Rawle, 381. The latter case is very analogous to the case at bar. The contract in the present case was, to “ indemnify and save harmlesswhich latter stipulation might authorize a recovery, if the party was actually damnified, although no money had been paid; as if the party were taken in execution and committed to jail, and there confined till he should take the poor debtors’ oath. In such case, he might recover, to the extent of the actual injury sustained; but that principle is not applicable to this case, upon the facts found here.
If this had been a promise to provide money for the pay merit of the notes that were given for borrowed money, such promise would have been broken by neglect to make the proper provision for their payment at maturity; and the party holding the indemnity might recover thereon, though the amount of damages, perhaps, would be nominal. But upon a bond of indemnity merely, the party would not be entitled to recover without proof of actual damage. Chace v. Hinman, 8 Wend. 452. Matter of Negus, 7 Wend. 499.
As a general rule, the right of a surety to maintain an action against the principal, or against a co-surety for contribution, does not arise until an actual payment of money. The plaintiffs, by the terms of the written contract, were authorized to
2. We perceive no sufficient objection to this form of action. The plaintiffs and defendant were not copartners in the erection of the building, but merely share-holders in certain defined proportions. The defendant made a promise, which was several in its nature, and not joint, and the exact proportionate share assumed by him is distinctly defined in the contract. There can be no necessity of resorting to a bill in equity, with a view of making the other subscribers parties, as such proceeding would not affect the amount of the defend ant’s liability; nor has he any right of contribution. It was competent, we think, for the defendant to make such express contract with the individuals composing the committee, although they might also be share-holders; and such contract may be t nforced at law.
3. The next objection taken is, that no liability ever attached to the defendant, inasmuch as the subscription paper was never filled up with the requisite number of shares. ' This fact might, under other circumstances, have been material, and the objection a fatal one to the maintenance of the action. If the
4. It is then further contended that the stipulations and engagements, entered into by the defendant, had reference to the erection of a meeting-house, which would require for its construction an expenditure not exceeding $5000. This, as it seems to us, was a provision entering into the original contract made by the defendant, and his liability was limited to the payment of his proportionate share of such deficiency as might exist in the expenditure, above the receipts, in the erection of a house, the cost of which did not exceed that sum. If, therefore, the committee have not substantially complied with this condition, and have materially and substantially
Some question was suggested as to the sufficiency of the declaration. This we have not particularly considered ; and it is unnecessary to do so, as the plaintiff may have leave to amend his declaration, if a new trial is had.
New trial granted.