Arnold v. Fowler

Fowler, J., delivered the opinion of the Court. The late Thomas H. Arnold, of Anne Arundel County recovered a judgment for $148.29 against Samuel T. Wilson of the same county and caused a writ of fieri facias to be issued thereon. The writ was executed by Joseph O. Fowler, then sheriff of said county, and the judgment debtor, the said Samuel T. Wilson, subsequently brought suit on the sheriff’s official bond and after failing to recover in the Circuit Court he took an appeal to this Court, and it was held in the case of Wilson v. Fowler, 88 Md. 602 , that he was entitled to recover damages for the illegal and oppressive, because excessive, levy made upon his growing peach crop. Accordingly the judgment of the lower Court was reversed and the cause was remanded for a new trial.

However, before a second ⁵⁰⁶ trial was had the parties to that suit agreed to a compromise and the defendant in that suit, who is the plaintiff and appellee in this case, confessed judgment for the sum of $250 and paid the same. Thereupon said plaintiff in this suit sued the said judgment creditor, to recover damages to indemnify him for loss suffered and sustained by reason of the execution of the fieri fiadas above mentioned in accordance with the directions and instructions of said execution creditor. The defendant interposed a demurrer to the narr., which having been overruled, he pleaded, and issue having been joined, the case was by agreement tried before the Court without a jury. At the conclusion of the plaintiff’s testimony the defendant filed demurrer thereto which was overruled.

At the conclusion of the whole testimony the plaintiff offered one prayer and the defendant two. The Court granted the plaintiff’s prayer and rejected the two offered by the defendant—and judgment having been given for the plaintiff, the defendant has appealed. The first question, therefore, which is presented by this appeal arises on the demurrer to the narr. The declaration contains two counts—the first being based upon an express agreement of the defendant “ to save harmless and indemnify the plaintiff from any loss or damage on account of the plaintiffs proceedings aforesaid under said writ of fieri fiadas and in the premises ; that the said Arnold urged this plaintiff to contest the aforesaid action brought by the said Wilson, both in the Circuit Court and the Court of Appeals, and promised to stand by this plaintiff and to save him from loss and injury by reason of said action against this plaintiff’s bond.” The second count is based upon an implied contract on the part of the defendant, Arnold, to indemnify the plaintiff.

The general principle is well settled that when a sheriff under instructions of the judgment creditor makes a levy in the manner and upon the property directed by him, the sheriff may, if he does not knowingly act in an unlawful and illegal manner recover damages from the judgment creditor to indemnify him even in the absence of a bond of indemnity or an express contract to indemnify. Thus in section 275 of 2 Free ⁵⁰⁷ man on Execution it is said “ if the sheriff follows the plaintiff’s directions in doing an act not known to him to be unlawful, and is thereafter compelled to respond in damages because of the act, he may recover from the plaintiff the amount so recovered from him.” So far from the levy in question having been in itself wrongful or illegal, we held in 88 Md. 601 that a growing crop of peaches or other fruit requiring periodical cultivation are fructus industriales and personal property and may be taken in execution as such. The narr. alleges that the defendant Arnold gave the plaintiff positive instructions as to what property should be taken in execution, and it is not to be inferred, without any proof to the contrary, that the plaintiff or his deputy knew, what was afterwards decided by this Court, that the levy was executed in an illegal and oppressive manner, because it was excessive. And if excessive it was so because this defendant (Arnold) who is alleged to have known the property, &c., gave directions to the plaintiff to take it under the writ.

In section 621, Murfree on Sheriffs, it is said : “ The general rule is that a cause of action does not arise until there has been some loss suffered by the plaintiff, and upon this principle it has been held that an officer is not entitled to sue an execution plaintiff, upon an implied contract to indemnify him for taking the goods of a third person under an execution against the defendant, until the officer has actually suffered the loss which he apprehended, * * * When an officer sues for an indemnity, his action is in the nature of an action on contract, not in the nature of an action for a tort, because there is no right of action between co-trespassers for either contribution or indemnity. The action must be founded on a contract, express or implied, to indemnify the officer against loss, and cannot be sustained until the loss has been suffered.” We have thus quoted at length these general observations, because we think the general rule which should govern in cases like the one at bar is therein fairly stated by the learned author. Upon an