Stark v. Raney

| Cal. | Jul 1, 1861

Cope, J. delivered the opinion of the Court

Field, C. J. and Baldwin, J. concurring.

This is an action upon a verbal agreement to indemnify the plaintiff for seizing certain property under an execution in favor of the defendant. The principal question is, whether the facts set forth in the complaint are sufficient to entitle the plaintiff to recover, and upon this question we think the Court below arrived at the proper conclusion. The argument on behalf of the defendant is, that he could not bind himself by an agreement to indemnify the plaintiff against the consequences of a trespass ; but it is clear that this proposition cannot be maintained. The plaintiff appears to have acted in good faith, and with no other view than that of obtaining satisfaction of the execution out of the property of the judgment debtor, and the act committed amounted simply to an unintentional wrong. In the case of a willful trespass, an agreement of this character would be in contravention of public policy, and ought not to be enforced ; but where there is nothing willful in the trespass, there is no reason why effect should not be given to the agreement. We understand the rule to be, that where the intention is to commit a trespass, the agreement will be void; but that where the object is to enforce a legal right, and the parties are actuated by no improper motive, the agreement will be valid. “ If,” said the Court of Appeals of South Carolina, in Jamison v. Calhoun, (2 Speer, 19) “ one man promise another to indemnify him for committing a crime, a misdemeanor, or a willful trespass, such promise is void; but this has never been supposed to extend to cases where the alleged trespass has been committed in the prosecution of a legal right, unless the legal right be merely pretensive.” (See also Crocker on Sheriffs, 319.)

The suggestion that the agreement was invalid for want of a compliance with the Statute of Frauds, requires but little consideration. It was not a “ special promise to answer for the debt, default or miscarriage of another,” within the meaning of the statute. The plaintiff was not acting for himself, but as the agent of the defendant, and the promise was to be responsible for the consequences of his acts in that capacity.

. The plaintiff was entitled to recover the costs incurred by him in defending the suit brought for the value of the property. His claim to indemnity extended to the entire damages to which he had been subjected on account of the seizure.

The judgment was properly entered by the Clerk, upon the default of the defendant in not answering after demurrer.

Judgment affirmed.