
    JAMES M. SELOVER, Respondent, v. ASBURY HARPENDING, Appellant.
    
      Contract to indemnify, or to guarantee, against loss—Measure of damages, the amount which was obliged to be and was in fact paid.
    
    By the agreement between the plaintiff and defendant, defendant guaranteed and was to indemnify and keep harmless the plaintiff against all losses which might arise on account of any depreciation in the market value of stocks which plaintiff should buy and sell in his own name for account of defendant under the agreement.
    There were losses on such stocks arising from depreciation in their market value, but with a single exception, plaintiff had not paid such losses to the brokers who made the purchases.
    
      Held, that the contract was strictly one to indemnify and save harmless; and that the measure of damages was the sum which plaintiff was obliged to, and actually did pay by reason of the losses arising from such depreciation.
    Before Freedman and Ingraham, JJ.
    
      Decided February 14, 1887.
    Appeal from judgment entered upon a verdict.
    The facts sufficiently appear in the opinion.
    
      Abbott Brothers, attorneys, Robert G. Ingersoll, Albert Alen Abbott and Victor Morawetz, of counsel for appellant, on the questions considered in the opinion cited:
    Gilbert v. Wiman, 1 N. Y. 550; Aberdeen v. Blackmar, 6 Hill, 324; California Dry Dock Co. v. Armstrong, 8 Sawyer, 523; Crippen v. Thompson, 6 Barb. 532; Belloni v. Freeborn, 63 N. Y. 390; Kohler v. Mattlage, 72 N. Y. 259; Rector, etc., Trinity Ch. v. Higgins, 48 N. Y. 532; National Bank of New York v. Bigter, 83 N. Y. 51; Wright v. Whitney, 40 Barb. 255; Churchill v. Hunt, 3 Davis, 321; Weller v. Eames, 15 Minn. 461; Ewing v. Reilly, 34 Mo. 113; Cutter v. Southern, 1 William Saunders, 133; Wicks v. Hoppock, 6 Wall. 84; Carson Opera House v. Miller, 16 Nev. 327, 332; Van Slyck v. Kimball, 8 Johns. 197; Matter of Negus, 7 Wend. 499; Jackson v. Toot, 17 Johns. 482; Gennings v. Norton, 35 Me. 308; Hay v. Buckner, 1 Freem. Ch. (Miss.), 533; Taliaferro v. Brown, 11 Ala. 702; St. Albans v. Curtis, 1 D. Chip. (Verm.) 164.
    
      E. H. Grandin, attorney, and Ira Shafer of counsel for respondent, on the question considered in the opinion cited:
    2 Sedgwick on Damages, 10, n. 2; Gries v. Zeck, 24 Ohio St. 329; Noble v. Arnold, 23 Ohio St. 264; Churchill v. Hunt, 3 Denio, 321; Rockfeller v. Donnelly, 8 Cow. 623; Bellini v. Freeburn, 63 N. Y. 383, 390; Crocker on Sheriffs, § 845, 847; Wright v. Whiting, 40 Barb. 235; Jarvis v. Sewall, 40 Barb. 235; Seligman v. Dudley, 19 Hun, 186, 187; 2 Sedgwick on Damages, pp. 3 and 7; Johnson v. Gilbert, 9 Hun, 469, and cases cited; Bancroft v. Mispear, 44 Barb. 209; Chace v. Hinman, 8 Wend. 452; 8 Cow. 628; Gilbert v. Wiman, 1 Comst. 550; Story v. Lyon, 63 N. Y. 172, 383.
   By the Court.—Ingraham, J.

The plaintiff alleges in his complaint “ That in and by said contract between said plaintiff and the defendant, it was agreed that plaintiff should buy the said stock in his own name, pay the commissions for buying and selling the same and pay the interest which might arise for holding and carrying the said stock, and said defendant guaranteed and was to indemnify and keep harmless the said plaintiff against all losses which might arise on account of any depreciation in the market value of said stock, and all commissions for purchasing and selling said stock and interest made or incurred in holding and carrying the said stock, and in case of an advance in the value of the said stock, that after deducting commissions and interest the gain or profit arising from such advance should be equally divided between said plaintiff and the said defendant.

The plaintiff, to sustain this allegation, gave evidence on the trial tending to show that the defendant made the contract alleged in the complaint, and that question was submitted to the jury, and they, having found for the plaintiff, it must be assumed that the contract alleged in the complaint was made by the defendant.

The defendant asked the court to charge “That there is no evidence that the plaintiff in this case has sustained any damages unless for the sum of $3,000, claimed by him to have been paid by him to Dillingham & Co., or Parkes & Co., February 13, 1883.” The court refused to charge as requested and the defendant excepted. The court then charged the jury “If you believe the evidence to be true, the loss he sustained was the difference between the price at which the stock was purchased and its price at the time it was sold, with commissions and interest.” To that charge the defendant excepted.

It appeared by the evidence that with the exception of $3,000 paid to Parkes & Co., none of the losses on the stock had been paid by the plaintiff to the brokers who purchased the stock, but that the loss still remained due and owing by him to such brokers, and the question is whether on the contract as alleged and proved, the plaintiff was entitled to recover for the amount of the loss not paid by him on the stock purchased under the agreement and which remains unpaid.

To determine defendant’s liability, it is first necessary to ascertain what the defendant agreed to do. If the guarantee was against liability, or the obligee becoming .liable, there is a breach of the covenant, and as soon as the obligee became liable to ¡Day, a cause of action existed, and although this principle has been questioned it is now firmly established in this state.

VVhere, however, the contract is a guaranty against damage or a guaranty against loss, before there can be a breach the obligee must suffer loss or sustain damage, and in that case before a cause of action exists actual loss or damage must be shown.

In Belloni v. Freeborn, 63 N. Y. 390, Allen, J. said: “ Had the bond been conditional solely to indemnify and save harmless from damage by reason of the liability, the obligee, the recovery would necessarily have been limited to the actual damages sustained by him. He could only have recovered to the amount of actual damnification.”

In Aberdeen v. Blackmar, 6 Hill, 324, the covenant was to indemnify and save harmless the plaintiff from any claim or demand that one Fuller might then have or might thereafter have against the plaintiff. It was held that this was strictly a contract to indemnify and save harmless and nothing more, and that the plaintiff showed no breach, although judgment had been recovered against him, the court saying, “It is not an agreement to indemnify against liability; but it is a common case to indemnify against the claim of a third person, and before plaintiff can recover he must show he has been damnified.” In the case of Kohler v. Matlage, 72 N. Y. 267, the court say “ The distinction is clearly defined between such an obligation and an indemnity against loss or damage by reason of a liability. In the former case the covenantee is to be saved from the thing specified, and in the latter from the consequence of it.” And in the case of Sinsheimer v. Tobias, 53 Super. Court 508, the rule is stated “If the contract made by Tobias was only to indemnify the plaintiff and save him harmless against claims of the creditors of the firm, payment of the claims or some of them by plaintiff would have been necessary to sustain an action for damages.”

In the case of Gilbert v. Wiman, 1 Coms., 550, the distinction is said to be between an affirmative covenant for a specified thing and one of indemnity against damage by reason of the non-performance of the thing specified.

In the case last cited the condition of the obligation was “ That the said sheriff shall not sustain any damage or molestation whatsoever by reason of any act from this day done or any liability incurred by or through .said deputy. The court held that plaintiff could only recover the amount of damage actually shown to have been incurred by the obligee; that by that obligation the defendant agreed that the plaintiff should not sustain any damage, which means actual damage, by reason of any liability incurred by the act of the deputy.

It was held by the commission of appeals in the case of Trinity Church v. Higgins, 48 N. Y. 537, “ the rule may be definitely drawn from numerous cases, that where indemnity only is expressed, damage must be sustained before a recovery can be had,” and this rule is approved in the case of National Bank of Newburg v. Bigler, 83 N. Y. 61, where the court say “ where the indemnity provided is against a charge or fixed legal liability, the obligee is to be saved from the thing specified and the right of action becomes complete upon the defendant’s failure to do the particular thing he agreed to perform, while on the other hand where the covenant is for indemnity only and against resultant damages, these must be actually suffered before an action can be maintained.

The contract alleged in this case was to indemnify and keep harmless the plaintiff against all loss which might arise on account of any depreciation in the market value of the stock. The contract proved was that the defendant would guarantee the plaintiff against loss. By the agreement it was the plaintiff who was to be indemnified^ and the loss was to be the loss of the plaintiff, not of the brokers. Until therefore the plaintiff was actually damnified by having actually paid something, he sustained no loss.

There is a marked conflict between many of the cases on this subject, and it is difficult to reconcile them. The later authorities however maintain the distinction above referred to, and I think it clear that the covenant in this case is for an indemnity against the loss only, and that such loss must be actually suffered before an action can be maintained.

I think therefore, the trial judge erred in charging that the measure of damage was the difference between the price, at which the stock was purchased, and its price at the time it was sold, and the judgment should therefore be reversed, and a new trial ordered with costs to appellant to abide the event of the action.

Freedman, J., concurred.  