Buffendeau v. Brooks

[643]By the Court,

Shafter, J. The motion for a nonsuit was properly granted by the Court below. The action was upon a bond given by the defendants to P. E. Edmondson, Sheriff of Alameda County, “ to indemnify and save him harmless from all damages, expenses, costs and charges, and against all loss and liability, which he, the said Sheriff, shall sustain or in anywise be put to for or by reason of the retention of said property, the levy, advertisement or delivery thereof, or for any act done under or by virtue of the said execution.” The execution referred to issued upon a judgment against Buffandeau in favor of one New; it had been delivered previously to Edmondson for service, and he had, prior to the delivery of the bond, levied upon one hundred and fifty head of cattle as the property of Buffandeau, which is the “ property” to the sale of which the indemnity relates. Buffandeau sues as the assignee of Edmondson.

The nonsuit was granted on the ground that the contract was unlawful.

The evidence of the plaintiff tended to prove that the levy was made on the 2d day of June, 1858 ; that the cattle were advertised for sale on the 17th, but were, in fact, sold on the 28th. That on the 16th Buffandeau instituted an action against New, for the purpose of enjoining him, “his agents, attorneys and servants, and all other persons claiming to act for him, from selling, or exposing for sale, said cattle, under and by virtue of said execution,” on an allegation that he, Buffendeau, had been discharged from the judgment named under the Act relating to insolvency. That a temporary injunction was granted, and that Edmondson was duly served with a copy of the nomplaint and order on the same day. That Edmondson had, prior to the service of the injunction, been notified by Buffendeau’s attorney, of his client’s discharge in insolvency, and that he immediately after the service, sent the papers to the defendant Brooks, attorney of New. That Brooks told the Sheriff that “ the injunction was irregular and he must not register it.” That Edmondson, [644]after he was notified of Buffendeau’s discharge and before the service of the injunction order, “ told Brooks that he had been notified, and that he would not sell the cattle unless he (Brooks) would indemnify him, and that Brooks promised that he would do so.” And that Edmondson, after the service of the injunction order, “ told Brooks again that he must indemnify him.” The evidence further tended to prove that the bond in suit, though dated on the 16th, was not in fact delivered until the SSth of June, the day of the sale.