Lerch v. Gallup

Belcher, C. C. This is an action on a verbal promise to idenmify 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 he briefly stated as follows:—

In March, 1875, one Ulloa recovered judgment against one Sotcher for fifty dollars and costs in a Justice’s Court iu 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 Avas 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 Avas issued Sotcher had removed from this 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 [597]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 Williams and against the plaintiff here for the sum of §506.25, damages and costs. An appeal was taken to the Supreme Court, and the judgment 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.