
    John Langford, Resp’t, v. William Broadhead and William J. Morse, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Indemnity—Parties.
    M. and W., members of a firm, entered into a contract with reference to dissolution, which contained a covenant by M. to indemnify and save W. harmless against all debts of the firm and all trouble and expense on account thereof. Defendant B., for the consideration of one dollar, joined in the contract for the purpose of joining with M. in said indemnity. Held, that as to W. the covenant of indemnity was joint, and that an. action for breach thereof was properly brought against B. and M.
    2. Same - Costs.
    Such covenant includes only costs necessarily and reasonably incurred» and not costs paid by the covenantee in supplementary proceedings against him.
    3. Evidence—Code Civ. Pro., §829.
    Evidence to show fraud on the part of the covenantee, who has since died, in procuring the covenant to be given, is inadmissible under § 828 of the Code.
    Appeal by the defendants from a judgment entered on the report of a referee.
    
      G. R. Lockwood, for app’lts; A. Hazeltine, for resp’t.
   Dwight, P. J.

The action was on a contract, under seal, executed by the defendants and one Ezra Wood, Jr., since deceased. The contract named the latter as party of the first part, and the defendant Morse as party of the second part, and most of the covenants contained in it were between those parties exclusively, and related to the dissolution and settlement of a copartnership which had previously existed between them. But the concluding covenant on the part of Morse was one by which he bound himself to pay all the debts of the firm, and to save Wood harmless therefrom and from all trouble and expense on account thereof, and in this covenant the defendant Broadhead joined in the following terms: “And said William Broadhead joins in this contract and puts his name and seal to the same for the consideration of one dollar to him in hand paid, etc., and for the purpose of joining' with the said Morse in indemnifying the said Wood against the outstanding liabilities of said firm; and said Broadhead hereby agrees to keep said Wood free and harmless from all said liabilities, including, etc., and from all costs, trouble and expense on account of the same.”

After the execution of the contract several judgments were recovered against Wood and Morse on liabilities of the firm, which were collected by execution out of the property of Wood, and he subsequently assigned his claim for indemnity under the contract to the plaintiff. Wood died before the commencement of this action.

There is no force in the contention that the defendants were improperly joined in the action. Although, as between themselves, Morse was, no doubt, the principal obligor and Broadhead! Ms surety, yet as to Wood their covenant of indemnity was expressly joint, and the action was properly brought against both.

The joint answer of the defendants set up the defense of fraud -on the part of Wood, by which they were induced to enter into the contract'of indemnity ; and Broadhead by a separate answer, interposed by way of amendment on the trial, averred similar fraud on the part of Wood and Morse conjointly, which induced him to unite with Morse in the execution of the contract.

These two rather inconsistent defenses it was sought to sustain by the testimony of the two defendants, offered in behalf of both :and of each of them. The testimony was objected to by the plaintiff under § 829 of the Code of Civil Procedure, and was very prop-erly excluded. Under whatever guise proposed, the offer was nothing other than an attempt on the part of the defendants to establish by their own testimony personal transactions or communi•cations between themselves and a deceased person, from whom the plaintiff derived his interest in the subject matter of the action. In the nature of the case the alleged fraudulent representation or conduct of the deceased which influenced the action of the defendants, or either of them, must have been a personal transaction or communication between the deceased and the defendant or defendants who sought to have the benefit of the testimony; and the testimony offered by the mouth of either of the defendants was in his own interest either separately or jointly with the other defendant. This brought the case strictly within the terms of the statute' referred to, and justified the ruling of the referee. The principle that one partner is chargeable with the fraud of his co-partner applies only to the partnership transactions, and the contract in question was not of that character; it was a ■contract of Broadhead with Wóod and Morse as individuals having separate and adverse interests.

One of the judgments collected of the property of Wood was recovered in an action in the supreme court on two notes of the firm held by the administrator of the estate of Wood’s father. Both defendants in the action were personally served, neither made any defense or appearance therein; and the judgment included costs in case of default, which; together with sheriff’s fees on execution, amounting to $74.77, were allowed by the referee against the defendants’ objection, in the amount recoverable by the plaintiff in this action.

All the other judgments against Wood and Morse of which proof or mention is made, were recovered in justice’s court; in neither of the actions was any- defense made, and only one of those judgments was paid by Wood, or charged to the defendants in this action. But the referee has allowed the claim of the plaintiff for the value of the services of an attorney who testifies ■that he was employed by Wood in connection with these actions, ■and in supplementary proceedings to enforce the judgments therein.

We think the allowance of costs and expenses in connection-■with any of the judgments recovered against Wood cannot be supported beyond the amount of costs entered in the two judgmente paid by him. It is true the terms of the indemnity are very broad, and include “ all costs, trouble and expense on account of” liabilities of the firm. But even this language will not be- construed to cover costs and expenses unnecessarily or unreasonably incurred. It was no doubt proper for Wood to suffer •the claims made against him to go into judgment, but not to drive the claimants to the levy of execution and sale of his property; .and least of all to proceedings supplementary to execution in ■ order to collect their judgments when recovered. The evidence fails to show the existence of circumstances which justified the ■expenses referred to, and we think they should not have been -allowed against the defendants.

In the actions in justice’s courts no defense was attempted, and so far as appears the services charged for by the attorney for Wood were rendered in resisting proceedings supplementary to ■execution. The charges last mentioned amounted to fifty dollars.

We find no other error in the rulings or decision of the referee. The judgment should be affirmed if consent is given to deduct therefrom the sum of $74.77, with interest thereon from March 18, 1882, to August 22, 1887, and the further sum of fifty dollars.

Judgment appealed from reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to modify the same by deducting from the face thereof the sum of $74.77, with interest from March 18, 1882, to August 22, 1887, and the further sum of fifty dollars; and if so modified affirmed, without costs of this appeal to either party.

Macombee and Lewis, JJ., concur.  