
    Carr v. Gooch.
    April Term, 1794.
    Promise of Indemnity — Sufficiency of Consideration to Support Action for Failure— Case at Bar. — The plaintiff being employed by A. and B. to sell land at public auction, cries it out to C. as the highest bidder. A. consta ering the sale as unfair, directs the plaintiff to cry it again. B. promises to indemnify the plaintiff if he will not comply with the request, to which he accedes ; in consequence of which he is sued by A. and B., and damages are recovered against him. The consideration of the promise made by B. is both legal and sufficient to support an action against him upon his promise of indemnity.
    This was an appeal from a judgment of the District Court of Charlottesville in an action upon the case, brought by the appel-lee. The declaration stated : that John Carr deceased, by his will, directed his executors, (of whom the defendant was one) to sell a tract of land the property of the testator; that the plaintiff was employed by the executors, to cry this tract of land at public auction, when the same was purchased by a certain John Moore who was the highest bidder. That Nathaniel Anderson, one of the executors, complained of the sale as being unfairly made, and contrary to the directions of the executors, and insisted that the land should be again set up for sale. That the defendant objected to this, and promised that if the plain tiff would not cry it again but would confirm the sale so made, that he would indemnify and save him harmless from all actions or demands, which might be brought against him on account of the sale made to Moore: that the plaintiff in consideration of this promise did forbear to cry the land again, and did confirm the sale. The breach is, that the defendant not regarding his said promise did cause and permit an action to be brought against him, in his name, and that of4the other executors, for and on account of the sale so made to the said Moore, and did cause and permit a judgment to be obtained against him, for ^140.
    Upon the plea of non assumpsit the plaintiff got a verdict. The defendant moved in arrest of judgment but was over-ruled.
    
      Washington'for the appellant.
    There is either no consideration at all laid in the declaration, or if there be, it is an illegal one. 1st, There is none laid. After the appellee had struck off the land to Moore, his power over the subject ceased. He had no longer an authority to vacate the purchase, and again expose the land to sale, or to confirm what had been done. If the transaction was fair and legal, nothing ^remained to consummate it, but for the executors to convey. If it was unfair or illegal, they alone could confirm or sell again. A promise then, made in consideration of the auctioneer’s not doing what he could not legally have done, was entirely vain, and had no necessary cause to induce it. As little so, as a promise to pay money to B. in consideration that he will not sell the land of C. which would undoubtedly be a nudum pactum.
    But if there be a consideration, then 2dly, it was illegal and consequently insufficient to maintain an assumpsit. The defendant undertakes, that if the plaintiff will confirm an unfair and illegal sale, he will save him harmless for so doing. When the foundation of an agreement is fraud, immorality, or any thing against law, a court of justice will not be made the instrument of enforcing the performance of it. The plaintiff himself states the consideration of the defendant’s assumpsit to be bottomed upon a fraud.
    Marshall for the appellee.
    Wherever a consideration, which is the foundation of a promise, produces benefit to the one party or injury to the other, it is sufficient to support an assumpsit. The defendant requests the plaintiff not to do a certain act, and promises to save him harmless from the consequences of his compliance. The plaintiff is induced by this promise to gratify the wishes of the defendant, which afterwards subjects him to the payment of damages. Can it be seriously urged that in such a case, there is no consideration for the promise? If the case require further aid, let it be observed, that the person bound to indemnify, is the very person who assists in producing the injury.
    The second point appears to be still more destitute of foundation. The principle laid down, that a consideration illegal or immoral will not sustain an assumpsit, is unquestionably true. But I cannot discern the application of it to this case. It does not appear that the plaintiff had done an unfair or illegal act. One of the executors supposes so, and insists upon a re-sale. The other executor thinks otherwise, and wishes to confirm it. It is a mere contest between them, each wishing to prevail, and the one promises to indemnify a third person employed by them to do a certain act, if he will obey his directions.
    
      
      See Scott v. Osborne, 2 Munf. 413.
    
   LYONS J.

delivered the opinion of the court.

The principle, laid down at the bar by the appellant’s counsel, as to the validity of consideration, is certainly correct. A promise to pay money in consideration of another’s doing an immoral or illegal act, would clearly be insufficient to support an action. But the present case is not chargeable with any such ^objection. The appellee was employed by all the executors to perform the duties of a cryer, in the selling of a tract of land. In that capacity, he struck it off to the highest bidder as he was bound to do. The sale, for any thing that we can know from this record, was fair and legal. But one of the executors thinking otherwise, desired a resale, which was successfully opposed by the appellant, in consequence of his promise to indemnify the cryer against all actions or demands on that account. Yet this very executor causes or permits an action to be commenced against the person he was bound to protect, and recovers damages. If there be fraud any where, it is properly chargeable to the appellant. Suppose a man is arrested at the suit of two executors, one of whom directs the officer to discharge the defendant, which is opposed by the other. The orders of the former are obeyed in consequence of a promise to indemnify and save the sheriff harmless. Yet this very executor unites with the other in an action against the sheriff, and damages are recovered against him. Can there be a doubt, but that the sheriff might well maintain an action upon this promise? It is difficult to conceive upon what principle the executors could recover damages from the cryer in the present case. As to the purchaser, he being the highest bidder, was most clearly entitled to the land, if he were not privy to a friiud ; or apprised of a deviation in the cryer from the orders of those who employed him. In such a case, the cryer might certainly be subjected to damages.

But whether the judgment against the appellee was a righteous one or not, cannot be a question, in the present action: he has sustained an injury in consequence of an act performed at the request of the appellant, against which the appellant promised to indemnify him.

We think there is no difficulty in the case' and affirm the judgment.  