Jones v. Childs

8 Nev. 121 | Nev. | 1872

By the Court,

Lewis, C. J.:

This action is brought upon an undertaking given to the sheriff of Douglas County and assigned to the plaintiff under these circumstances. An execution having been issued upon a judgment rendered in a certain action in favor of Wilcox & Brown against John T. Williams, a levy was made by the sheriff upon property claimed by the plaintiff Jones. Wilcox & Brown however directed the sheriff to sell the property so levied on in accordance with the execution, and gave him the bond here sued on to indemnify him against any liability which he might incur thereby. The property was sold accordingly, and Jones subsequently brought action against the sheriff and recovered judgment in the sum of eleven hundred and fifty dollars. To satisfy this judgment the sheriff assigned the bond given for his own indemnity to Jones, who accepted it in satisfaction of his judgment and now brings this action to recover of the defendants the amount so recovered.

The bond is set out and made a part of the complaint and all the material facts are fully pleaded; but the defendants by their answer only deny that Bollen, the sheriff, was damaged in the sum alleged in the complaint or in any sum by reason of the action or the judgment rendered against him in the case of Jones against him or that they, the defendants or either of them, ever became liable or aie now liable to Bollen in the amount of the judgment and costs referred to in the complaint. There is no denial that the undertaking was regularly executed and delivered to Bollen, nor is it denied that the judgment was regularly rendered against him in the action by Jones, nor that the undertaking was properly assigned. Upon these pleadings (a'motion to that end having been made) the court below rendered judgment, from which the defendants appeal. Two points only are relied on for a reversal of the judgment: 1st, that no recovery could be had on the undertaking until it was shown that Bollen had paid the judgment.obtained against him or that he was actually damnified; and 2d, that it was error .to render a judgment in gold coin. Neither of these, points are well taken.

It is undoubtedly the rule of the common law courts that to authorize a recovery upon a mere bond of indemnity actual damage must be shown. If the indemnity be against the payment of money the plaintiff is generally required to prove actual payment, or that which the law considers equivalent to actual payment. But it has very generally been held that if the indemnity be not only against actual damage or expense, but also against any liability for such damage or expense, the party need not wait until he has actually paid the demand against him, but his right of action is complete when he becomes legally liable for damages. This is in strict conformity with the letter of the bond or undertaking, for if the indemnity be given against any liability, clearly when the liability is legally imposed the condition is broken and a right of action is at once created. Webb v. Pond, 19 Wend. 423; Chase v. Stranahan, 8 Wend. 452. See also the question considered in Gilbert v. Merrian et als., 1 Comstock, 550. Thus the difference in the language of obligations has given rise to the two classes of decisions; those holding that no cause of action arises until there is actual damage which are cases arising upon obligations of indemnity purely; and the other class, like Olíase v. Stranahan; where the bond or undertaking is not only of indemnity but also against liability, in which cases it is very generally held that the cause of action is complete when the liability is established, arid therefore that no actual damage or payment of the liability need be shown.

In this case the undertaking is given to indemnify not only against damage and expense but also, as in the case of Olíase v. Stranahan, against all liabilities. The language being— “now therefore, the conditions of this obligation is such, that if the said plaintiffs., Wilcox & Brown, their heirs, executors, and assigns shall well and truly indemnify and save harmless the said sheriff, his heirs, executors, administrators, and assigns, of and from all damages, expenses, costs, and charges, and against all loss, and liabilities which said sheriff shall sustain, or in any wise be put to for or by reason of the levy, sale or retention under said execution of the property claimed as aforesaid, then the above obligation to be void — otherwise to remain in full force and effect. ” By the language of this instrument the defendants became liable the moment the judgment was obtained against Bollen, for that was a liability imposed upon him growing out of the transaction mentioned in the undertaking, and thus the case comes directly within the rule above mentioned. Bollen then had a right of action on the undertaking, and that, he regularly assigned to the plaintiff. The first assignment of error is therefore not sustained.

The judgment was properly rendered in gold coin. The penalty of the undertaking is in coin and the sheriff’s liability' was also in coin; and we have invariably held since the case of Linn v. Minor, 4 Nev. 462, that such judgment is properly rendered on contracts calling for that character of money. And the supreme court of the United States, although sustaining the legal tender act (Knox v. Lee, 12 "Wallace, 457) yet holds as this court had done before, that a judgment in coin can be rendered on a contract calling for that kind of money. Trébilcoclc v. Wilson, 12 Wallace, 687.

Judgment below affirmed.

Garber, J., did not participate in the foregoing decision.