Showers v. Wadsworth

Hayhe, C. Action by a sheriff upon a contract to indemnify him against liability arising from the claims of- certain parties upon property which was in his custody, and which he delivered to the defendant upon re[271]ceiving said contract. Judgment passed for the plaintiff, and the defendant appeals.

The general features of the case are as follows: An action was brought against two mining companies by the defendant, Wadsworth, who, it appears, was acting in the interest of Wells, Fargo & Co., which corporation was the real owner of the claims. A writ of attachment was issued in the case, and under it the sheriff took possession of certain personal property of the mining companies. Thereupon certain of the miners who had claims for labor, and who contended that they were preferred creditors, gave notice of their claims to the sheriff and to the attaching creditor, under section 1206 of the Code of Civil Procedure, as amended in 1874, which provides, in substance, that if such claims are undisputed, the sheriff shall satisfy them out of the property in his hands, and that if they are disputed, the claimants shall establish their validity by action, which must be brought within ten days. Judgment was rendered in favor of Wadsworth, the attaching creditor (defendant here), and the property was sold to him. He did not pay the price bid for the property, but induced the sheriff to deliver it to him without payment, upon his agreement that he would furnish the sheriff “a good and sufficient bond indemnifying him against all loss and liability which he may incur by reason of delivering the bullion attached, . . •. . or which he may become responsible for by reason of the preferred claims in said cases filed with him.” The agents who acted for Wads-worth in the matter had authority to make such a contract. It is admitted by the pleadings that Wadsworth never gave a bond of indemnity. At the trial he applied for leave to amend his answer in this respect, but the court denied the application. This ruling is not complained of in the briefs filed, and if it had been, we could not say that upon the showing made there was any abuse of discretion. It is, therefore, an established fact that [272]the defendant failed to perform his agreement to give a bond of indemnity.

After the property had been delivered .to him, one of the claimants commenced an action against the sheriff, and the others were about to do so. And in order to prevent a multiplicity of actions, and to settle the question of the validity of the various claims, two suits were brought in the name of the sheriff against the claimants. Judgment in these suits was rendered in favor of' the defendants, and it was thereby adjudged that the claims against the sheriff were valid. These suits were brought in consequence of the request of the sheriff that his interests should be protected. And we think that the request was properly made. It was made to the attorneys who had acted for Wadsworth in his transactions with the sheriff; Mr. Gorham was the one who arranged the transaction for the delivery of the property and the making of the contract of indemnity. The defendant, Wadsworth, says with reference to him: “Mr. Gorham was acting as agent to do anything that was done. He was the only one that had authority to do anything. I sent him there to attend to that business; to do what was necessary.” And he acted as the attorney of Wads-worth, and • not' as attorney of the sheriff, though at all times he was acting under the direction of other attorneys. Mr.- Haggin was acting for those whom Wads-worth represented. - These gentlemen were applied to by the sheriff because they were the' only attorneys for Wadsworth whom he knew in the prerriises.