Robinson v. Hill

| Superior Court of New Hampshire | Jul 15, 1844

Gilchrist, J.

The plaintiffs being bound to indemnify Fletcher from all costs, trouble and damage he might be put to, &c., received the mortgage in question of the defendant, conditioned to indemnify them from all costs, trouble and expense they might be put to in consequence of having signed the bond to Fletcher. The horse was mortgaged to secure the performance of the condition, and the plaintiffs having been damnified, took him into their possession, but in doing this incurred trouble and expense. In consequence of having signed the bond to Fletcher, they were compelled to resort to the mortgaged property to indemnify themselves, and no reason occurs to us why the trouble and expense they incurred in availing themselves of their security, is not pro-tided for by the language of the condition.

We have recently had occasion to examine the authorities upon a question similar to that now before us, in the case of French vs. Parish, 14 N. H. Rep. 496. In the case of Sparkes vs. Martindale, 8 East 593, the plaintiff, who was indemnified as bail, was sued on the bail bond, and it was said by Lord Fllenborough that the plaintiff was entitled not merely to be indemnified for expense actually incurred, but to be saved harmless from incurring any by reason of his engagement. In Kip vs. Brigham, 7 Johns. 168, there was a suit on a bond given by the defendants to the plaintiff, who was sheriff of a county, as security for the gaol liberties granted by the plaintiff to one Brigham. A verdict had been recovered against the plaintiff for the escape of Brigham, in a suit which the plaintiff' defended, aided by the defendants. It was held that the costs of that suit might be recovered by the defendants. “ They were,” said Kent, C. J., “part of the loss and damage which the plaintiff had sustained by means of the default of the defendants, in not satisfying the creditor.” In the case of Loomis vs. Bedel, 11 N. H. Rep. 74, it was held that a grantee with warranty might recover the sum he had paid to extinguish a paramount title, with a compensation for his trouble and expenses.

It is not necessary to go any farther than the above authorities in order to be justified in holding that the plaintiffs are entitled to recover the compensation they are seeking. The defendant has no reason for complaining if the plaintiff's should recover. It was his neglect which caused the action to be brought against the plaintiff's, and which forced them to resort to the mortgage he had given them for their security, as it was just they should do. But even the mortgaged property -was not forthcoming, as it ought to have been, without the interference of the plaintiffs, but they were obliged to incur trouble and expense in procuring it. And as “trouble and expense” are two of the matters from which the defendant has agreed in terms to save the plaintiffs harmless, our opinion is that, for a sum which will compensate them therefor, to be ascertained in some proper mode, there should be

Judgment for the plaintiffs.