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(67 Cal. 595)

LERCH v. GALLOP. (No. 8,728.)

Filed October 22, 1885.

VERBAL PROMISE OF INDEMNITY-STATUTE OF FRAUDS-EXECUTIONS.

An action may be maintained upon a verbal promise of sureties on an undertaking on appeal-the appeal on which their undertaking was given having been dismissed-to indemnify a constable against any damages he might sustain by reason of a levy and sale on execution, at their request, of certain specified property alleged to be that of the judgment debtor, where such sale was wrongful and the property proven to be that of another person, and the constable has been compelled, in an action against him, to pay for the conversion ; the interest defendants had in having the execution satisfied being a sufficient consideration for such promise of indemnity, and such promise uot being within the statute of frauds; and such action is maintainable, notwithstanding the execution was issued at defendants' request without the knowledge of the judgment creditor, if the latter subsequently ratitied and confirmed their act by accepting the money under it in full payment of his judgment. Commissioners' decision. Department 2. Appeal from superior court, Stanislaus county. Wright & Hazen, for appellants. W. E. Turner, for respondents.

BELCHER, C. C. This is an action on a verbal promise to indemnify the plaintiff, who was a constable, for seizing and selling certain personal property under an execution. The court below sustained a demurrer to the complaint, and the plaintiff declining to amend, judgment was entered in favor of the defendants. The appeal is from that judgment.

The facts of the case, as they appear from the complaint, may be briefly stated as follows:

In March, 1875, one Ulloa recovered judgment against one Sotcher for $50 and costs in a justice's court in Stanislaus county. An appeal was taken from the judgment to the county court, and an undertaking to stay execution thereon was signed by the defendants here, as sureties for the appellant, and filed in the case. In February, 1878, the appeal was dismissed. In March, 1878, the judgment remaining wholly unpaid, an execution thereon was issued at the special instance and request of the defendants and placed in the hands of the plaintiff for service, he being at the time a constable authorized to receive and serve the same. At the time the execution was issued Sotcher had removed from the state, and had left no property here, so far as plaintiff knew, subject to seizure and sale. The defendants informed the plaintiff that they had discovered certain personal property belonging to Sotcher, which was subject to seizure and sale, and they pointed the property out to the plaintiff and demanded that he, as such constable, levy upon and sell the same in satisfaction of the judgment and execution. The plaintiff, inasmuch as he did not himself know about the property, asked from the defendants a bond of indemnity to secure him against any damages he might sustain by reason of the levy and sale, should they prove to be wrongful. The defendants then assured the plaintiff that the property belonged to Sotcher, and expressly promised him that if he would levy upon and sell the property in satisfaction of the judgment and execution, they would save him harmless and indemnify him for any damages he might sustain by reason of the levy and sale. The plaintiff, in consideration of the defendants' promise, and at their special instance and request, then levied upon and sold the property under the execution, and thereby paid and satisfied the judgment in full. In March, 1879, one Williams, claiming to have been the owner of the property when it was levied upon and sold, commenced an action against the plaintiff in the district court for Stanislaus county to recover the sum of $400, the alleged value thereof, and $124 damages. The defendants were notified of the action, and, at their request and in their behalf, the plaintiff answered to the complaint and used due diligence in defending the action. The case was tried in May, 1879, and judgment was rendered in favor of Williains and against the plaintiff here for the sum of $506.25 damages and costs. An appeal was taken to the supreme court, and the judginent was there affirmed in December, 1880. In May, 1881, an execution on the judgment was taken out and levied on the property of this plaintiff, and in June following he paid the judgment in full, amounting then to the sum of $630. The plaintiff, also, in defending the action, necessarily expended the further sum of $375 for counsel fees and other expenses; and he claims to have been damaged in the sum of $2,000 by the seizure of his property under the execution. In August, 1881, plaintiff demanded of the defendants payment of the damages sustained by him as aforesaid, but they refused, and have ever since refused, to pay the same. This action was commenced in December, 1881, and the plaintiff asks judgment for damages in the sum of $3,005.

We think the complaint stated facts sufficient to constitute a cause of action, and that the court erred in sustaining the demurrer.

1. The execution on the justice's court judgment was issued “at the special instance and request” of the defendants; but it does not follow from that fact that it was issued without the knowledge and request of the party in whose favor it was given, nor, if it was, that the plaintiff knew it was so issued when it was placed in his hands for service. And if it was issued at the request of the defendants, without the knowledge of the judgment creditor, he must be held to have ratified and confirmed their act in ordering it when he accepted the money made under it in full payment and satisfaction of his judgment. Clarkson v. White, 4 J. J. Marsh. 529.

2. The defendants were sureties on the undertaking on appeal, and were liable to be called upon at any time to pay the judgment. They were interested therein in having the money made out of the property of the judgment debtor. This was a sufficient consideration for their promise to indemnify the plaintiff if he would levy upon and sell under the execution the property which they pointed out to him and asked him to sell. Tarr v. Northey, 17 Me. 113; Truin v. Gold, 5 Pick. 380.

3. The promise to indemnify the plaintiff was not within the statute of frauds. Under our statute, “a promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:

“(1) Where the promise is made by one * * * who has received a discharge from an obligation in whole or in part, in consideration of such prom

“(3) Where the promise, being for the antecedent obligation of another, is made

ise."

upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another per

Civil Code, $ 2791.

son."

Here, out of the money made by the levy and sale, the judgment was satisfied and the defendants were discharged from their obligation to pay it. Their promise was therefore evidently made upon a consideration beneficial to them.

4. The plaintiff appears to have acted in good faith in levying upon and selling the property pointed out to him. He committed no willful trespass, and there is no reason, therefore, why the promise to indemnify him should not be enforced. Stark v. Raney, 18 Cal. 622; Coventry v. Barton, 17 Johns. 142; Stone v. Hooker, 9 Cow. 154; Nelson v. Cook, 17 Ill. 443; Avery v. Halsey, 14 Pick. 174.

The judgment should be reversed and the cause remanded, witb. directions to the court below to overrule the demurrer.

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BY THE Court. For the reasons given in the foregoing opinion the judgment is reversed and cause remanded, with directions to overrule the demurrer to the complaint.

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SUPREME COURT OF OREGON.

(11 Or. 361)

SIMPSON and others v. Carson.

March Term, 1884. 1. REAL ESTATE BROKER-CONTRACT_COMMISSION-PAROL EVIDENCE.

Where a real estate broker seeks to recover a commission upon written contract not under seal, it may be shown by parol that at the time of the delivery of the written instrument there was a verbal agreement that it was not to be

operative except upon the happening of a certain contingency. 2. SAME_POWER COUPLED WITH AN INTEREST.

Where there is no valuable consideration passed for the agreement on the part of the broker, there was no power coupled with an interest, and the agency

could at any time be terminated on notice. 3. PLEADING AND PRACTICE_TENDER-EFFECT.

A tender and payment into court of a certain amount is not an admission, except to the amount of the tender. Appeal from Multnomah county. John M. Gearin and W. T. Burney, for appellants. Northrup & Gilbert, for respondent.

BY THE COURT. This is an action on a special contract to recover commissions on the sale of real property. The contract is in writing, signed by the owner of the property, and recites as the consideration valuable services performed and to be performed.” It bears date November 8, 1882, and gives the appellants “the exclusive sale” of the property for 185 days, and afterwards until five days' notice by the respondent of her intention to terminate the agreement. It also binds her to make conveyance in case of sale by the appellants, and to

pay them all over $15,500 net, realized upon the sale of the property. The appellants allege performance on their part and the refusal of the respondent to execute a conveyance and accept the stipulated price, $20,000, or to pay them $4,500 due them as commissions under their contract with her. The defense is: (1) A denial of the contract. (2) Fraud on the part of appellants in obtaining it. (3) A parol agreement at the time of delivery of the written contract that it should not become operative without the assent of J. C. Carson, the respondent's husband, which was not obtained. (4) A rescission of the contract by the respondent before the sale by the appellants, and a tender and payment into court of $40 as the reasonable value of the appellants' services prior to such rescission. These matters were all put in issue and submitted to a jury, who found a verdict of $40 for the appellants. Judgment was entered accordingly in their favor on respondent's motion. The errors assigned on the appeal arise wholly upon instructions given or refused at the trial.

1. The court below charged the jury in effect that the parol agreement alleged in the defense, if established by the evidence, would bar any recovery beyond the $40 tendered and paid into court, unless the

assent of the respondent's husband had been obtained. The written contract sued on is not under seal, and even at common law the authorities cited by appellants' counsel would not apply. Worrall v. Munn, 5 N. Y. 229; Braman v. Bingham, 26 N. Y. 483; Ward v. Lewis, 4 Pick. 518; Foley v. Cowgill, 5 Blackf. 18; and in fact all the authorities relied upon by them,—are cases where it was sought to qualify the delivery of sealed instruments to grantees by parol evidence. And the evidence was rejected under a technical rule which has no application to simple written contracts. Pym v. Campbell, 88 E. C. L. 370; Wallis v. Littell, 103 E. C. L. 368; 2 Whart. Ev. § 927, and note 10; Butler v. Smith, 35 Miss. 457; Barker v. Prentiss, 6 Mass. 430; Hildreth v. O'Brien, 10 Allen, 104. The rule upon which the first-mentioned class of decisions rests is that a deed, if intended as an escrow, must be delivered to a stranger, and not to the grantee himself. If delivered to the latter, the act is conclusive of the intention of the parties that it shall be operative.

2. The court instructed the jury that unless the contract sued on was based upon actual indebtedness, given for a valuable consideration, or was a power coupled with an interest, the respondent could rescind it at any time before a sale by appellants by notice to them. There is surely nothing in this that appellants can complain of. If there was no consideration for respondent’s engagement, as the first part of the instruction assumes, it must be conceded she could rescind at any time before becoming bound through a sale by the appellants. And whether there was a consideration was a question of fact, properly left to the jury. Probably the court should have charged the jury that the written instrument sued on did not create “a power coupled with an interest,” as the term is understood in this country Hunt v. Rousmanier's Adm'r, 8 Wheat. 174; Hartley v. Minor's Appeal, 53 Pa. St. 212. - But the error in submitting the question as to whether it did or not to the jury, as seems to have been done by the latter portion of the instruction, manifestly could not have prejudiced the appellants.

3. The court refused to instruct that the plea of tender “admitted every fact” necessary for the appellants to establish to entitle themselves to a verdict. This was proper. The court had directed the jury to find a verdict for the appellants for the amount tendered and paid into court in any event. This they did. But the appellants sought by this instruction to preclude the respondent from disputing the facts to prevent a further recovery. This advantage they were not entitled to. The tenders and payment into court only admitted the cause of action as to the sum tendered. It did not conclude the respondent as to any defense she might have against a further recovery. This we deem the better rule. Spalding v. Vandercook, 2 Wend. 431; Davis v. Millaudon, 17 La. Ann. 97; Eaton v. Wells, 82 N. Y. 576.

Judgment affirmed.

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