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of the policy, as determined in the previous section,
Sec. 3. This Act shall take effect immediately.
SECTION 2772. Indemnity, what.
2773. Indemnity for a future wrongful act void.
2772. Indemnity is a contract by which one en- Indonnity,
what. gages to save another from a legal consequence of the conduct of one of the parties, or of some other person.
NOTE.—Indemnity is defined in 1 Bouv. Law Dict., p. 697, to be “That which is given to a person to prevent his suffering damage;" referring to 2 McCord, So. C., p. 279. He instances as a rule in all Governments, that indeinnity shall be given by the public when private property is taken for public use. This is the case in the United States, and is so declared (probably without an exception), if not literally by construction, in every one of the State Constitutions. By Sec.
3137, post, Subd. 3, a party claiming payment of an amount due on a lost or destroyed negotiable instrument may by the payor be required to give a bond of indemnity. Before the adoption of the Codes, it was decided by the Supreme Court of this State that indemnity must be given in the following cases: In an action on a certificate of deposit lost, the complaint must be accompanied with a bond of indemnity against future claims for its payment.-- Welton vs. Adams, 4 Cal., p. 39. So must the complaint be accompanied by indemnity bond filed for a recovery of judgment upon any lost instrument.-Id., 4 Cal., p. 39. So on a lost or destroyed negotiable instrument.-Price vs. Dunlap, 5 Cal., p. 483. This case is affirmed in Castro vs. Wetmore, 16 Cal., p. 379, as to averment, and as to identity, before action. Randolph vs. Harris, 28 id., p. 564. Indemnity must be given Sheriff to levy on and sell property claimed by third party, and found to be his by Sheriff's jury, before he sells it under execution as the defendant's property.-Strong vs. Patterson, 6 Cal., p. 157. In such case of levy Sheriff''s right to notice and demand by third party is not waived by indemnity bond.- Taylor vs. Seymour, 6 id., p. 514. Indemnity to witness to divest him of interest affecting his competency.-Peralta vs. Castro, 6 id., p. 357. These cases are no longer in point since “ interest” does not render a witness incompetent.--See Sec. 1879 of the Code of Civil Procedure, Cal.; old Practice Act, Sec. 391. See, also, as to indemnity to Sheriff to sell property under erecution claimed by third party.-Davidson vs. Dallas, 8 Cal., p. 251. Doubted in same case.-15 Cal., p. 80. Administrator takes indemnity bond to make premature sale, and the bond held to be legal and binding.--Comstock vs. Breed, 12 Cal., p. 289. Receiver's bond.-Adams vs. Haskell and Wood, 6 Cal., p. 475. Bond to indemnify Sheriff against any judgment for levying upon and selling wrong property is independent of his official bond.-Fratt vs. White, 13 Cal., p. 521. Agreement so to indemnify Sherif is valid, if in good faith, to enforce a legal right (Stark vs. Raney, 18 Cal., p. 622); but if it is to indemnify for committing a trespass, it is not valid.-Id.; see, also, Dennis vs. Goddard, 28 Cal., p. 101; Roussin vs. Stewart, 33 Cal., p. 208. To recover on, must have paid the judgment; it is not sufficient that judgment is rendered.-Lott vs. Mitchell, 32 Cal., p. 23. Indemnifying Sheriff-specifying if certain stock did not bring a certain amount obligors would make up deficiency, is binding.-Hal
leck vs. Moss, 22 Cal., p. 266. Joint obligors jointly
2773. An agreement to indemnify a person against Indemnity
for a future an act thereafter to be done is void, if the act is known wrongful
act void by such person, at the time of doing it, to be wrongful.
Note.—" Contracts made for the purpose of indemnifying a person for doing an act for which he could be indicted, or an agreement to compensate a public officer for doing an act which is forbidden by law, or for omitting to do one which the law commands, are absolutely void. But when the agreement with an officer was not to induce him to neglect his duty, but to test a legal right, as to indemnify him for not executing an execution, it was held to be good."-1 Bouvier Inst., Note 780. See Stark vs. Raney, 18 Cal., p. 622; Dennis vs. Goddard, 28 Cal., p. 101; Roussin vs. Stewart, 33 Cal., p. 208. In the two latter cases the acts are valid, because not wrongful, and are here referred to as instances of such. See, also, note preceding to Sec. 2772; see, also, Shackell vs. Rosier, 2 Bing. N. C., p. 613. Otherwise it is valid.–Stone vs. Hooker, 9 Cow., p. 154; Allaire vs. Ouland, 2 Johns. Cas., p. 62;
Coventry vs. Barton, 17 Johns., p. 142. 2774. An agreement to indemnify a person against Indemnity
for a past an act already done, is valid, even though the act was wrongful
act valid. known to be wrongful, unless it was a felony.
NOTE.-Kneeland vs. Rogers, 2 Hall, p. 579; Parker vs. Rochester, 4 Johns. Cas., p. 329. The law implies a contract on the part of employer to save from damage, or make good damage received in his proper employment.- Baxter vs. Roberts, July Term Sup. Court,
Cal., 1872. 2775. An agreement to indemnify against the acts Indemnity
extends to of a certain person, applies not only to his acts and acts of their consequences, but also to those of his agents.
NOTE.-Stone vs. Hooker, 9 Cow., p. 154; Hill vś. Packard, 5 Wend., p. 375; affirming S. C., 7 Cow.,
Indemnity 2776. An agreement to indemnify several persons to several.
applies to each, unless a contrary intention appears. Persons 2777. One who indemnifies another against an act indemnifying liable jointly or
to be done by the latter, is liable jointly with the with person person indemnified, and separately, to every person indemnified. injured by such act.
NOTE.-See note to Sec. 2772, ante; Lewis vs. Johns, 34 Cal., p. 629; Herring v. Hoppock, 15 N. Y., p. 409; affirming S. C., 12 N. Y. Leg. Obs., p. 167; Fonda vs. Van Horne, 15 Wend., p. 631; Davis v. Newkirk, 5 Denio, p. 92.
Rules for interpreting agreement
2778. In the interpretation of a contract of indem
nity, the following rules are to be applied, unless a indemnity. contrary intention appears:
1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable;
2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof;
3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion;
4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so;
5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is con- Same. clusive in his favor against the former;
6. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former;
7. A stipulation that a judgment against the person indemnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action.
NOTE.-Subd. 1.-Scott vs. Tyler, 14 Barb., p. 202; Chace vs. Hinman, 8 Wend., p. 452; Weble vs. Pond, 19 id., p. 423; Churchill vs. Hunt, 3 Den., p. 321; Gilbert vs. Wiman, 1 N. Y., p. 350; and see Westervelt vs. Smith, 2 Duer's Rep., p. 449; S. C., 12 N. Y. Leg. Obs., p. 78.
Subd. 2.- Aberdeen vs. Blackmar, 6 Hill, p. 324; Scott vs. Tyler, 14 Barb., p. 202; Campbell vs. Jones, 4 Wend., p. 306; Churchill vs. Hunt, 3 Den., p. 321; Gilbert vs. Wiman, 1 N. Y., p. 550; Collinge vs. Heywood, 9 Ad. & El., p. 633; Reynolds vs. Doyle, 1 Man. & Gr., p. 573.
Subd. 3.-Embraces cost of the defense.- Westervelt vs. Smith, 2 Duer's Rep., p. 449; Mott vs. Hicks, 1 Cow., pp. 513, 539; Smith vs. Compton, 3 B. & Ad., p. 407; Warwick vs. Richardson, 10 M. & W., p. 284.
Subd. 3.-Also demands incurred in good faith and with reasonable discretion.-Short vs. Kalloway, 11 Ad. & El., p. 28.
Subd. 4.-Person indemnifying on request must defend action for the indemnifed.-Trustees of Newburgh vs. Gallatian, 4 Cow., p 340.
Subd. 4.-The indemnified may defend if he choose.See Peck & Acker, 20 Wend., p. 605, where this principle was applied to the case of Sheriffs.
Subd. 5.-Aberdeen vs. Blackmar, 6 Hill, p. 324; Beers vs. Pinney, 12 Wend., p. 308; Trustees of Newburgh vs. Gallatian, 4 Cow., p. 340; Given vs. Driggs, 1 Caines, p. 450; Stone vs. Hooker, 9 Cow., p. 154;