
    No. 463
    PHILLIPS et v. ZIMET
    No. 19793.
    Supreme Court
    On motion to certify.
    Dock. May 5, 1926.
    297. CONTRACTS — Where an indemnity clause in a contract has been breached, may the suffering party maintain an action thereunder for indemnity, after a judgment has been rendered in favor of a third party against the indemnitee, but before the judgment has been paid?
    Attorneys — M. J. Monahen and S. H. Miller for Phillips; W. W. Rosenzweig for Zimet; all of Cleveland.
   Sadie Zimet brought this action. originally in Cleveland Municipal Court against Rose Phillips and Jacob Phillips for damages for breach of an indemnity clause contained in a contract.

Rose Phillips and Zimet entered into a contract for sale afid purchase of a piece of property in which contract the following stipulation was contained:

“It is understood that the Purchaser shall save the Seller harmless from the payment of any commission or compensation arising out of the sale of said premises.”

. Zimet was the Seller and Phillips the Purchaser.

After the transaction was closed and Rose Phillips became the owner of the property but before a deed had been given, two brokers filed suit against Zimet for commissions on the sale of the property and both recovered judgment.

Zimet thereupon brought this action in the Municipal Court where judgment was rendered in her favor for a sum equal to the two judgments. This judgment was sustained by the Common Pleas Court.

Phillips in the Supreme Court contends:””

1. That Jacob Phillips was not a party to this written contract but was acting as agent for Rose Phillips and that he should have been dismissed as party defendant after it was disclosed by the evidence that he had no part in signing the contract.

2. As the action is based upon a contract of indemnity Zimet is not entitled to recover until the judgments rendered against her' have been satisfied.

3. That Zimet defrauded her by representing that the brokers who recovered judgments had nothing to do with the sale and later admitted that their claim was well founded.

4._ That the court failed to make separate findings of law and facts as requested.

5. That no double liability existed because only one broker could have been responsible for the sale.

6. That she has been denied the equal protection of the law.  