Conkey v. Hopkins — 17 Johns. 113

Majority

p. 98

*Conkey against Hopkins.

Headnote

pay to the trustees of a reii-fertainsum'aií nuaiiy, towards gospefSister m that society ; The plaintiff subscribed to and the defendant, in consideration of 25 dollars, verbally agreed to indemnify the plaintiff against any claim arising from his subscription. The plaintiff, being sued for his subscription, and a judgment recovered against him for 5 dollars and 43 cents, brought an action against the defendant for damages : Held, that the agreement was valid, and not. within the. statute of frauds, the defendant not being bound to the trustees: and that, the contract of indemnity being broken, as soon as the plaintiff was sued on his subscription, the plaintiff might maintain an action against the defendant without proving an actual payment of the money recovered] as the judgment against him fixed the amount he was compellable to pay, and was the proper measure of damages he was entitled to recover of the defendant,

IN ERROR, on certiorari to a Justice’s Court,

Hopkins sued Conkey, in the court below, for damages for a breach of contract. The plaintiff' below" had bound himself to Pay a certain sum, annually, to the trustees of the First Pres-by ferian Society in Milford, towards the support of the defendant below as a gospel minister in that society. The defend

p. 99

ant, then, for the consideration of 25 dollars, verbally agreed to save harmless, and indemnify the plaintiff' against all claims arising from his subscription to the minister’s salary.

The trustees of the society, to whom the subscription money was made payable, sued //.. the plaintiff below, on his subscription, and recovered judgment against him for 5 dollars and 43 cents. And this suit was brought to recover damages, on the ground that the defendant had not saved the plaintiff’ harmless, nor indemnified him against that claim of the trustees. The justice gave judgment for the plaintiff, for the like sum of 5 dollars and 43 cents, and the costs.

This is not a case within the statute requiring a note in writing, to charge one person with the debt or default of another; it is not pretended that the defendant below was bound to the trustees. It is equally clear, that the rule of damages adopted by the justice was correct. It was not necessary for the plaintiff to prove an actual payment of the money by him to the trustees, after the judgment. The contract of indemnity was broken as soon as the plaintiff was sued by the trustees; and the judgment fixes, definitively, the amount which he is compellable to pay. The plaintiff does not stand in the character of a surety, who must actually pay the debt, before he can recover %gainst his principal. We are of opinion, that the judgment of the court below ought to be affirmed.

Judgment affirmed.