Bartlett v. Campbell — 1 Wend. 50

Majority

p. 50

Bartlett vs. Campbell.

Headnote

In a suit against one on a joint and several promise of indemnity by two, notice to one is notice to Both. And notice to the party not sued, will charge him who is sued,^[1]

Error to Monroe common pleas. The plaintiff, as a constable, by virtue of an execution in favor of Joseph Jeffords, levied on a pair of horses, waggon and sleigh, in possession of William Shaw, and received for his indemnity an instrument in writing, in the following words : “ I hereby agree to indemnify S. B. Bartlett against all damages he may sustain by levying on a span of horses now in the possession of Win. Shaw. March 7,1826. (Signed) Joseph Jeffords. Benjamin Campbell, security.” The plaintiff sold one of the horses, and was sued by Alexander Shaw, who claimed to be the owner of the horse, and a judgment was recovered against the plaintiff for $41 by default, which he paid, and now claimed to recover the amount of the defendant.

In a justice’s court where these proceedings were originally commenced, the plaintiff declared on the above instrument. The defendant plead, besides the general issue, that the plaintiff suffered a default in the suit against him, which might have been defended successfully; and that notice of that suit was not given to the present defendant, during its pendency. The plaintiff replied, that notice had been given. A verdict having passed against the plaintiff in the justice’s court, he appealed to the common pleas; and on the trial in that court, the plaintiff proved the recovery against him by Shaw, and the payment of the money. Notice of the suit was shewn to have been given to Jeffords, one of the signers of the instrument, but not to Campbell, who was a merchant in Rochester, but at the time of the suit was absent from home, on a journey to Ohio. The court-decided that the plaintiff must be nonsuited for the want of notice to Campbell of the pendency of the suit: to which decision the plaintiff excepted. Subsequently, further evidence was given on the

p. 51

part of the plaintiff, and the defendant was permitted by the court, though objected to by the plaintiff, to prove that the title of A. Shaw to the horse, for the sale of which he had recovered the judgment against the plaintiff was fraudulent and void, and on that ground the jury found a verdict for the defendant. The case came before this court on a bill of exceptions. It was submitted on written briefs.

■S. Houghton, for plaintiff.

S. L. Selden, for defendant.

By the Court,

The contract of indemnity was either joint or several, at the election of the plaintiff Bartlett, It is contended by the plaintiff in' error, that notice was not necessary to be given, upon an undertaking to indemnify; that the defendants were bound to take notice, at their peril, of any action brought against the plaintiff I need not cite cases to show that notice is necessary; but the main question, if not the only one in the case, is whether notice to Jeffords was not notice to both. It is conceded that if this suit had been brought against both Jeffords and Campbell, the notice given to Jeffords would have been sufficient to justify a recovery against both. Jeffords was the principal in the undertaking to indemnify, and Campbell was the surety. If notice to one would justify a recovery against both, it must be on the ground that the notice was sufficient. If sufficient to make both liable, can it make any difference whether the suit is brought against both separately or jointly 1 The notice, I apprehend, was sufficient. It was clearly so as to Jeffords ; and if the contract is joint, then it was good as to both. And if the contract had not been several as well as joint, there never could have been a question about it. It is necessary to distinguish between liability itself and the remedy by which that liability is to be enforced. If it be conceded that the defendant was liable to pay in any form of action, it must be upon the ground that he had sufficient notice of the suit against the plaintiff. If once liable, the plaintiff may enforce that liability in any form of action which the contract will justify.

p. 52

Being of opinion that the court erred on this point, I think the judgment must be reversed, and a venire de novo awarded to Monroe common pleas»