| Ky. Ct. App. | Jan 26, 1847
delivered the opinion of the Court.
Chamberlain and Lair brought this action of assumpsit against Lucas, upon an al'ledged .promise to indemnify them for becoming, at the request of Lucas, the sureties, with others, of J. & J. Stephens, in an injunction bond, to enjoin further proceedings on a judgment which had been replevied with the defendant, Lucas, as the only surety.
Upon the issue of non-assumpsit, the evidence conduced to prove that J. & J. Stephens, the original debtors, were insolvent, but that one of them had mortgaged some property to Lucas to indemnify him for becoming surety in the replevy bond on the judgment against them, that the execution on said bond had been levied on the property of Lucas, when it was stayed by the injunction in which the plaintiffs were sureties; that Lucas told Chamberlain .that if he and Lair would become sureties in the injunction bond, (whereby his property would be saved from sale,) he would indemnify them, and that they did become sureties. The injunction was afterwards dissolved and the hill dismissed with damages and costs. A judgment was obtained on the injunction bond. The execution thereon was levied, as may be inferred, on the property of the present plaintiffs, who, with sureties furnished by themselves, replevied the debt. In this state of the case the present action was brought. But it appeared upon the trial that
We think there is no error in the record. Although there is no direct evidence of an immediate request and promise of indemnity to both of the plaintiffs in person, the evidence authorizes the inference of a joint request and promise, which is the more certain because Lair was not actually present when the promise was made to Chamberlain to indemnify both, .if they would become sureties. A parol promise to A. to pay to B. who is absent, is in legal effect a promise to B. and may be so stated in pleading. So a promise to A. to indemnify him and B. (who is absent,) if they will do a certain act, is in legal effect a promise to both. It is not necessary to recapitulate the circumstances which show that there was a sufficient consideration on the part of Lucas, besides the obligation incurred by the plaintiffs at his request and in consequence of his promise, the incurring of which is itself a sufficient consideration for the promise.
But the execution of the injunction bond was a direct benefit to Lucas, whose property was thereby to be relieved from the levy which had been made on it. And as between him and the plaintiffs the debt enjoined was
The question made upon the refusal of the Court to give the instruction that nominal damages alone could be recovered unless the plaintiffs had actually paid, &c. and upon the objection that the damages were excessive, which was urged as a ground for a new trial, is in effect decided by the case of Burns and McConnough vs Parish, (3 B. Monroe, 10.) It was decided in that case, that as a surety who replevies the debt by a valid replevy bond, thereby extinguishes the judgment, he may proceed against the principal or other sureties, as if he had made actual payment in money. The same principle has been recognized in other cases. The payment by passing a negotiable security, (as a bill of exchange,) which has been negotiated, has been held equivalent to payment in money, and sufficient to sustain the action for money paid and advanced. There can be no presumption that the replevy bond in this case cannot or will not be coerced unless voluntarily paid, and especially when a levy has been actually made. And as the debt for which the plaintiffs became bound at the request of the defendant and on his promise of indemnity, has in fact, tallen upon and been extinguished by them, we are clearly of opinion that the whole amount of their liability is the proper criterion of the damages sustained by the breach of the promise of indemnity. Nothing less will, in fact, indemnify them.
Wherefore, the judgment is affirmed.