Davis v. Smith

• Decision Date: 14 April 1887
• Citation: 10 A. 55,79 Me. 31
• Parties: DAVIS v. SMITH.
• Court: Maine Supreme Court

10 A. 55

79 Me. 31

DAVIS

v. SMITH.¹

Supreme Judicial Court of Maine.

April 14, 1887.

On report from supreme judicial court, Somerset county.

Assumpsit upon a contract of indemnity to recover amount paid by plaintiff on behalf of defendant. The opinion states all the material facts.

Merrill & Coffin, for plaintiff. D. D. Stewart, for defendant.

FOSTER, J. This action, brought upon a contract of indemnity, comes to this court upon a full report of the evidence, with the stipulation that the court is authorized to draw such inferences therefrom as a jury might legally do. It appears that the plaintiff, on January 24, 1871, gave his negotiable promissory note for $209 to Harrison Dorr, guardian of Eosetta Dorr, niece of the defendant, payable on the first day of January, 1874. The defendant had obtained letters of guardianship in an adjoining county in which she resided, and with whom Eosetta was at that time living; and, soon after the note became due, represented to the plaintiff that she was the lawful guardian of Eosetta Dorr, and as such was legally authorized to collect said note, whereupon the plaintiff paid the defendant the sum of $231.21, the amount then estimated to be due upon the note. At the same time, and in consideration thereof, the defendant agreed in writing to fully indemnify and save the plaintiff harmless in consequence of his paying the note to her. Suit was afterwards commenced by the indorsee of the note. The case was tried and carried to the full court. Finally, judgment was rendered against this plaintiff for the amount of the note, and interest thereon from date. Dorr v. Davis, 76 Me. 301. After judgment was rendered against him this plaintiff paid the amount of it, together with costs of suit, to the plaintiff in that action, and now seeks to recover the sum thus paid, amounting to $479, from the defendant in this suit.

To entitle him to a recovery he must show that some other person has established a better title to the money upon that note than the defendant herself had, and that he has been compelled to pay it to such person. This he may do in one of two ways: (1) By ordinary proof of an outstanding better title in such third person, to which he yielded and paid; (2) by a judgment against him by such third person, to which the defendant was party or privy, and which judgment he has been compelled to pay. Hall v. Thayer, 12 Mete. 136. The plaintiff does not base his claim upon the ordinary proof of an outstanding superior title in some third person to which he yielded and paid, but upon the recovery of a judgment against him, payment of the same, and for which the defendant was bound to indemnify and save him harmless. The defendant was not a party to the action upon which that judgment was rendered. Prima facie she was not bound by the judgment; and to make it evidence against her, and in favor of himself, the plaintiff must show that it was rendered against him, in favor of the indorsee of the note, upon a transaction against which the defendant was bound to indemnify him. If such was the fact, it would be legitimate and competent evidence; otherwise it would not; and evidence aliunde is admissible for such purpose. Littleton v. Richardson, 34 N. H. 189.

From an examination of the evidence it is apparent that the cause of action, in the other suit was the identical note which the defendant had induced the plaintiff to pay over to her, the amount of which she acknowledges she received from the plaintiff at the time of agreeing to indemnify him in consequence of such payment. With this connecting parol evidence, together with the copy of the declaration and of the note in question, as well as with what appears from the other evidence in the case, the identity of the cause of action in that suit with the subject-matter to which the indemnity relates is sufficiently established. Was the judgment therein rendered against this plaintiff conclusive against the defendant in this action? It was, provided she had due notice of the pendency of the action in which that judgment was rendered, and had an opportunity to defend it. The rule seems to be established that when a person is responsible over to another, either by operation of law or by express contract, and notice has been given him of the pendency of the suit, and he has been requested to take upon himself the defense of it, he is no longer regarded as a stranger to the judgment that may be recovered, because he has the right to appear and defend the action equally as if he were a party to the record. When notice is thus given, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not. Veazie v. Railroad Co., 49 Me. 124; Hardy v. Nelson, 27 Me. 530; Boston v. Worthington, 10 Gray, 498; Littleton v. Richardson, 34 N. H. 187.

We are of the opinion, from the evidence before us, and with the inferences legitimately to be drawn from it, that the defendant had such notice of the pendency of the suit as renders the judgment recovered therein conclusive against her. She employed and paid the counsel who tried the case. She went, in company with the plaintiff, twice to Dover to have the case tried; it being continued the first time because the other side was not ready. She was present at the trial, testified in the case, and paid all the expenses of this plaintiff and his witnesses. If the evidence reported is to be taken as true, she appears to have regarded the case as her own until the decision rendered from the law court. The facts shown are sufficient to render the judgment conclusive against her, although the plaintiff had not in terms requested her to take upon herself the defense of that action. "This was not necessary," say the court in Boston v. Worthington, supra, "to render the judgment conclusive against them as to the facts thereby established." And this principle is established by the great weight of authority, that, where one stands in the position of indemnitor to another who is liable over to a third party, his liability may be fixed and determined in the action brought against such third party by notice of the pendency of such action, and an opportunity afforded him to defend it. Aberdeen v. Blackmar, 6 Hill, 324; City of Chicago v. Robbins, 2 Black, 423. In such case the authorities hold that notice in writing, or even express notice, is unnecessary, but that notice may be implied from his knowledge of the pendency of the action, and a participation in its defense. City of Chicago v. Robbins, supra; Robbins v. City of Chicago, 4 Wall. 657; Port Jervis v. Bank, 96 N. Y. 557; Barney v. Dewey, 13 Johns. 226; Beers v. Pinney, 12 Wend. 309; Warner v. McQary, 4 Vt. 508; Boston v. Worthington, supra; Chamberlain v. Preble, 11 Allen, 374; Veazie v. Railroad Co., 49 Me. 119, 120. "It cannot be material to the person agreeing to indemnify that lie should have a formal notice served upon him. The law requires that lie should have notice before the judgment can bi used against him, because he is the real party in interest. But any notice which will enable him to present any defense which he may have either in law or in fact is all that can be useful to him, and the law requires no vain or useless ceremonies in such cases." Holbrook v. Holbrook, 15 Me. 12. In such case the judgment binds the party whose duty it is to indemnify, and becomes legitimate evidence in favor of the plaintiff and against the defendant. Train v. Gold, 5 Pick. 379; Kip v. Brigham, 6 Johns. 159; Kyerson v. Chapman, 66 Me. 563.

But the defendant contends that there is no sufficient legal evidence introduced of any judgment such as the plaintiff has alleged in the several counts of his writ; that there is a fatal variance between the allegations and the proof, and consequently the plaintiff is not entitled to recover. At the time the order for judgment was sent down from the law court an entry was made upon the docket of the county where the action was pending for hearing in costs by the defendant. No vouchers have ever been filed by the plaintiff in that action, and no hearing had by the defendant therein in relation to costs. Consequently no extended record of the judgment has ever been made, as appears from the testimony of the clerk. True, a record was commenced, but it was never completed. That portion of the record which the clerk had commenced, a copy of which was introduced, shows affirmatively that it is incomplete, never having been made up and attested by the clerk. When the record is once made up, however, it becomes conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and the statements contained in it must be regarded as importing absolute verity, and not subject to explanation or contradiction by any evidence outside of such record. But until the record is in fact fully extended it is well settled that the docket is the record, and the entries therein are the only proper evidence of the judgment. Willard v. Whitney, 49 Me. 238; Leathers v. Cooley, Id. 342.

The fact that there maybe no fully extended record does not affect the judgment. That is the principal thing; the record is only evidence of it. Here the certified copies of the docket entries were introduced, and they show that judgment was rendered against this plaintiff for the sum of $209, with interest from January 24, 1871, the full amount of the note "as per certificate from clerk of law court received and filed June 10, 1884." By Rev. St. c. 77, § 45, it became the duty of the clerk to "enter judgment as of the preceding term," and the judgment, when entered up, should have been as of the February term preceding. "But for most purposes," remarks Barrows, J., in Huntress v. Hurd, 72 Me. 454, "the order of the law court to the clerk of the supreme judicial court to enter up judgment, or directing such a disposition of all pending questions as leaves nothing to be done but to make...