Burr v. Cross

SMITH, J.

This is an appeal from a judgment against the defendant for the sum of $1,069.30, with interest from August 16, 1900, and costs.

There is a statement or bill of exceptions in the record containing the evidence given on the trial, which was that of the plaintiff only, the defendant declining to put in any evidence.

The gist of the case as shown by the complaint is: In a suit of the defendant against Laing and others an attachment was issued to the plaintiff, who was then the sheriff of Los Angeles county, and by him levied on certain property of the defendant’s in the attachment case; and thereupon, on the proposition of the defendant, the attached property was placed in charge of an employee of the defendant as keeper upon and in consideration of his promise to save the plaintiff harmless from all liability for any damages that might be done to the property by reason of the negligence, carelessness, or breach of duty of such employee while in charge of the property. The attached property remained in charge of the keeper thus employed until January 1, 1899, during which time, by the negligence or misconduct of the keeper, the property, or much of it, was lost, destroyed and otherwise damaged to the amount of $1,000. And thereafter, the attachment having been released, a suit was brought against the plaintiff by the assignee of Laing for damages on account of the loss, consumption and destruction of the property as aforesaid, and judg

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ment recovered against him for the sum of $1,000 and costs, aggregating $1,069.30, which was paid by the plaintiff.

It appears from the evidence, though not alleged in the complaint, that -the defendant was notified of the pendency of that suit and undertook that his attorney should assist in the defense.

The court finds that all the allegations of the complaint are true; and this finding, we think—though the contrary is contended by the appellant—is fully sustained by the evidence.

The principal point urged by the appellant is, that the promise of the defendant—which was admittedly oral—was void under subdivision 2 of section 1624 of the Civil Code. But we are of the opinion that this contention cannot be sustained. The promise of the defendant was his own, made for his own benefit and upon a sufficient consideration moving to him, and he is therefore to be regarded as “the principal debtor.” (Civ. Code, secs. 1605, 2794, subd. 2.)