Pritchard v. Norton

This action was brought by the plaintiff in error, a citizen of Louisiana, against the defendant, a citizen of New York, in the circuit court for the district of Louisiana, upon a writing obligatory, of which the following is a copy:

'State of New York, County of New York: Know all men by these     presents, that we, Henry S. McComb, of Wilmington, state of      Delaware, and Ex Norton, of the city of New York, state of      New York, are held and firmly bound, jointly and severally,      unto Richard Pritchard, of New Orleans, his executors,      administrators, and assigns, in the sum of fifty-five      thousand (55,000) dollars, lawful money of the United States,      for the payment whereof we bind ourselves, our heirs,      executors, and administrators firmly by these presents. Sealed with our seals and dated this thirtieth day of June, A. D. eighteen hundred and     seventy-four.

'Whereas the aforesaid Richard Pritchard has signed an appeal     bond as one of the sureties thereon, jointly and severally,      on behalf of the defendant, appellant in the suit of J. P.      Harrison, Jr., v. The New Orleans, Jackson & Great Northern      Railroad Co., No. 9,261 on the docket of the seventh district      court for the parish of Orleans:

'Now, the condition of the above obligation is such that if     the aforesaid obligors shall hold harmless and fully      indemnify the said Richard Pritchard against all loss or      damage arising from his liability as surety on the said      appeal bond, then this obligation shall be null and void;      otherwise, shall remain in full force and effect.

H. S. MCCOMB. [L. S.]

'EX NORTON. [L. S.]'

Richard Pritchard, of whom the plaintiff in error is executrix, had, on November 20, 1872, joined in a bond as surety for the New Orleans, Jackson & Great Northern Railroad Company, in a suspensive appeal taken by the latter from a judgment rendered against it in favor of Harrison, in the seventh district court for the parish of Orleans. A judgment was rendered on that appeal in the supreme court of the state, May 30, 1876, against the railroad company, in satisfaction of which Pritchard became liable to pay and did pay the amount, to recover which his executrix brought this action. The condition of this appeal bond was that the railroad company 'shall prosecute its said appeal and shall satisfy whatever judgment may be rendered against it, or that the same shall be satisfied by the proceeds of the sale of its estate, real or personal, if it be cast in the appeal; otherwise that the said Pritchard et al., sureties, shall be liable in its place.' The defendant set up, by way of defense, that the bond of indemnity sued on was executed and delivered by him to Pritchard in the state of New York, and without any consideration therefor, and that by the laws of that state it was void by reason thereof. There was evidence on the trial tending to prove that the appeal bond was not signed by Pritchard at the instance or request of McComb or Norton, and that there was no consideration for their signing and executing the bond of indemnity passing at the time, and that the latter was executed and delivered in New York. There was also put in evidence the provisions of the Revised Statutes of that state, (2 Rev. St. 406,) as follows: 'Sec. 77. In every action upon a sealed instrument, and  when a set-off is founded upon any sealed instrument,   the seal thereof shall only be presumptive evidence of a   sufficient consideration, which may be rebutted in the   same manner and to the same extent as if the instrument   were not sealed.

'Sec. 78. The defense allowed by the last section shall not     be made unless the defendant shall have pleaded the same, or      shall have given notice thereof at the time of pleading the      general issue, or some other plea denying the contract on      which the action is brought.'

At the request of the defendant the circuit court charged the jury that the indemnifying bond, in respect to its validity and the consideration requisite to support it, was to be governed by the law of New York, and not of Louisiana; and that if they believed from the evidence that the appeal bond signed by Richard Pritchard as surety was not signed by him at the instance or request of McComb and Norton, or either of them, and that no consideration passed between Pritchard and McComb and Norton for the signing and execution of the indemnifying bond by them, then that said bond was void for want and absence of any consideration valid in law to sustain it, and no recovery could be had upon it. The plaintiff requested the court to charge the jury that if they found from the evidence that the consideration for the indemnifying bond was the obligation contracted by Pritchard as surety on the appeal bond, and that the object of the indemnifying bond was to hold harmless and indemnify Pritchard from loss or damage by reason of or growing out of said appeal bond, then that the consideration for said indemnifying bond was good and valid, and is competent to support the action upon the bond for the recovery of any such loss or damage sustained by Pritchard. This request the court refused. Exceptions were duly taken to these rulings, which are now assigned for error, there having been a verdict and judgment for the defendant, now sought to be reversed.

Cephas Brainerd and George H. Bates, for defendant in error.

[Argument of Counsel from pages 126-128 intentionally omitted]

Henry C. Miller, for plaintiff in error.

MATTHEWS, J.