30 Wis. 68 | Wis. | 1872
Lead Opinion
The following opinion was filed at the June Term, 1870:
We have no difficulty upon the point so fully discussed by counsel, as to whether the bond given by the defendants to Bartlett was only intended to indemnify him against any loss or liability which he might sustain upon such a bond as was required by the Illinois statute. The sole object of giving this bond of indemnity to him was to save him harmless from all loss or liability which he might sustain on account of any judgments obtained against the steamboat company, in the attachment suits, which he or those signing any bond or obligation for the release of the boat should be liable for and be compelled to pay. But this indemnifying bond did not alone contemplate the giving of the statutory bond, bnt any bond or other obligation “necessary and requisite to obtain a release of the boat.” Manifestly, the thing which the defendants desired to accomplish was the release of the steamboat “ Viola,” which had been attached in the state of Illinois. And they doubtless well knew that the boat could not be released from the attachments except by giving the proper bond, -under the Illinois statute, for that purpose, or by Bartlett or other parties giving the plaintiffs in those actions some satisfactory obligation to induce them to release the boat. So that upon the precise point argued here, namely, whether the language used in the indemnifying bond given by the defendants to Bartlett, only authorized him to execute the statutory bond, we fully agree with the counsel for the plaintiffs, that it did not so restrict him. Any bond, therefore, or other obligation, given by Bartlett, requisite and necessary to procure a release of the boat, would come within the language and intent of the bond sued on.
It is not very obvious to our minds what it is the plaintiffs rely upon as constituting a breach of the bond given by the defendants. Their right of action upon the bond we have assumed is not greater nor more complete than would be that of their assignor. Suppose Bartlett had brought the action alleging a failure of the defendants to perform the condition of their bond. The question would at once arise, what was the condition they agreed to perform ? It was that the defendants would pay Bartlett or his assigns their equal and exact portions of any and all judgments which might be recov
We have felt it to be our duty to make these suggestions in regard to the sufficiency of the complaint, although that point is not made on the brief of counsel. The demurrer was to the answer, that it did not state facts constituting a defense or counterclaim. The demurrer searches back to the first defective pleading. And if the complaint is defective because no breach of the indemnifying bond is properly assigned therein, as it seems to us it is, then the demurrer should have been sustained as a demurrer to the complaint.
By the Court. — The order of the circuit court is modified so as to sustain the demurrer as a demurrer to the complaint.
Plaintiffs’ counsel moved for a rehearing on tbe ground that tbe court, in deciding upon tbe legal effect and construction of tbe bond in question, did not discriminate between an indemnity against damage on a liability and an indemnity against tbe
Rehearing
The motion for a rehearing was disposed of at the January term, 1870, as follows:
It is claimed on the re-argument of this cause that the court in its former opinion failed to take the distinction between an understanding to indemnify against damage on a liability and an indemnity against the liability itself, and it is insisted that the bond given by the defendants to Bartlett was an undertaking of the latter character. We think that the plain language of the bond itself repels any such construction. In the reciting part of the bond we find that Bartlett proposed to procure the release of the boat by executing or procuring to be executed an obligation for that purpose “ on condition that the above bounden parties shall save and hold harmless the said L. D. Bartlett, or those executing said bond or other obligation from loss or liability for or on account of any judgments that may be obtained in ” the actions against the “ Steamboat Navigation Company.” Again it is recited that it is understood and agreed by the parties to the instrument “ that any judgment that may be obtained in said action which the said Bartlett or those whom he procures to execute the bond or other obligation neces-essary and requisite to obtain the release of the boat shall be compelled to pay, shall be paid by the above bounden parties and the said Bartlett, each of the said parties and the said Bartlett paying equal and even portions thereof, and this obligation is given to secure to the said Bartlett the full payment of the amounts which the above bounden parties may or shall become liable to pay to the said Bartlett or those whom he procures to sign the bond or other obligation aforesaid.” And by the condition the obligors were to pay Bartlett or his assigns “ their
It seems to me impossible to say on these clauses of the instrument that the defendants agreed to indemnify Bartlett against all liability in procuring the release of the boat. On the contrary, it is perfectly apparent that it was .the expectation of all parties that he would incur such a liability by signing a bond for the release of the boat, and that he might become liable to pay judgments obtained in the attachment suits against the Navigation Company. It was not then a covenant to indemnify against liability but a covenant to save him harmless against the consequences of that liability. This distinction is important and is recognized in the cases to which we are referred on the brief of counsel. Judge Gardiner in Gilbert v. Wiman, 1 N. Y., 550-562, alludes to this distinction, and distinguishes such cases as that of Rockfeller v. Donnerly, 8 Cowan, 623, and Chace v. Hineman, 8 Wend., 452, from the case before him. He says: “ The distinction between the bond in question and those above mentioned consists, I apprehend, in this, that by the former a “ charge ” or “fixed legal liability ” is declared to be the injury from which the obligee is to be saved harmless. By the condition of the latter, the obligor stipulates that the sheriff shall not sustain any damage or molestation by reason of any liability, etc. By the former he is to be saved from the thing specified. By the latter from its consequence, or in other words, from the damage or molestation which may result from the liability.” This “ distinction between an affirmative covenant for a specific thing, and one of indemnity against damage by reason
By the Court.— The order of the circuit court is modified so as to sustain the demurrer as a demurrer to the complaint.