Bartlett v. Campbell

1 Wend. 50

• Court: New York Supreme Court
• Decided: May 15, 1828
• Status: Published

Opinion

By the Court,

Savage, C. J.

The contract of indemnity was either joint or several, at the election of the plaintiff Bartlett, It is contended by the plaintiff in' error, that notice was not necessary to be given, upon an undertaking to indemnify; that the defendants were bound to take notice, at their peril, of any action brought against the plaintiff I need not cite cases to show that notice is necessary; but the main question, if not the only one in the case, is whether notice to Jeffords was not notice to both. It is conceded that if this suit had been brought against both Jeffords and Campbell, the notice given to Jeffords would have been sufficient to justify a recovery against both. Jeffords was the principal in the undertaking to indemnify, and Campbell was the surety. If notice to one would justify a recovery against both, it must be on the ground that the notice was sufficient. If sufficient to make both liable, can it make any difference whether the suit is brought against both separately or jointly 1 The notice, I apprehend, was sufficient. It was clearly so as to Jeffords ; and if the contract is joint, then it was good as to both. And if the contract had not been several as well as joint, there never could have been a question about it. It is necessary to distinguish between liability itself and the remedy by which that liability is to be enforced. If it be conceded that the defendant was liable to pay in any form of action, it must be upon the ground that he had sufficient notice of the suit against the plaintiff. If once liable, the plaintiff may enforce that liability in any form of action which the contract will justify.

Being of opinion that the court erred on this point, I think the judgment must be reversed, and a venire de novo awarded to Monroe common pleas»