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Aberdeen v. Blackmar

6 Hill & Den. 324 Court N.Y. Sup. Ct. English

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p. 324
Aberdeen vs. Blackmar.

Headnote

In an action on a contract to indemnify and, save harmless against the claim or demand of a third person, the plaintiff must show that he has been actually damnified.
Accordingly, where the declaration averred that judgment had been recovered against the plaintiff on the claim or demand, but did not show that he had paid any part of it, or been subjected to loss or expense; held, insufficient.
The case of Rockfeller v. Donnelly, (8 Cowen, 633,) adverted to and questioned. Per Bronson, J.
In order to make a judgment recovered on such claim or demand conclusive against the indemnitor, he must have notice of the suit, and an opportunity to defend. Per Bronson, J.
The omission to give notice, however, does not go to the right of action on the contract of indemnity; but merely affects the onus probandi.
Covenant upon the defendant’s sealed agreement to indemnify and save harmless the plaintiff from any claim or demand that one Fuller might then have or might thereafter have against the plaintiff, by reason of his having executed a certain stipulation in a chancery suit. The breach alleged in the declaration was, that after the making of the covnant, Fuller commenced a suit in this court against the plaintiff, by the filing and service of a declaration, to recover dam
p. 325
ages under the stipulation, and obtained judgment by default against the plaintiff for $323,58, damages and costs : By reason of which premises the plaintiff has sustained damages, &c. Demurrer and joinder.
B. L. Bessac, for the defendant.
The plaintiff was bound to appear and plead in the suit commenced against him by Fuller ; and not having done so, nor given notice to the defendant of the pendency of the suit, this action camiot be maintained.
No sufficient breach is alleged. The contract is one of indemnity, and the plaintiff cannot recover until he has paid the whole or some part of the judgment. A plea of non damnificatus to this declaration would be good. The case of Rockfeller v. Donnelly, (8 Cowen, 623,) is not law. (Chace v. Hinman, 8 Wend. 452 ; Matter of Negus, 7 id. 499, 504 ; Jackson v. Post, 17 Johns. Rep. 482 ; Thomas v. Allen, 1 Hill, 145 ; 1 Saund. 116, note (1).)
H. R. Selden, for the plaintiff,
insisted that this case came within Chace v. Hinman, ( 8 Wend. 452 ;) the contract being to indemnify against any claim or demand.

If the plaintiff wished to make the judgment recovered by Fuller conclusive upon the defendant, he should have given the defendant notice, and an opportunity to defend the suit. But the omission to give notice does not go to the right of action. It only leaves the onus upon the plaintiff of showing that the judgment was recovered for a claim or demand against which the defendant was bound to indemnify the plaintiff. On showing that, neither the want of notice, nor the fact that the judgment was recovered hy default, would, deprive the plaintiff of a remedy over on the defendant’s covenant.

But there is a fatal defect in the declaration for another reason. This is strictly a contract to indemnify and save harmless, and nothing more; and the plaintiff shows no breach. Although judgment has been recovered against him,. he has

p. 326
paid nothing. He did not employ an attorney, and was put to no costs or expense in defending the suit. It does not even appear that he has any lands upon which the judgment is a lien. In Chace v. Hinman, ( 8 Wend. 452 ,) the contract was to indemnify against liability, as well as against actual damage; and even there the court was somewhat influenced by the decision of the court of errors in Rockfeller v. Donnelly, (8 Cowen, 623;) which, to say the least of it, is a very questionable case. This is not an agreement to indemnify against liability; but it is the common case of an agreement to indemnify against the “ claim or demand” of a third person; and before the plaintiff can recover, he must show that he has been damnified. The mere fact that the demand of Fuller has changed its form, by having passed into a judgment, is not enough.

Judgment for the defendant.

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