#### GRANT v. LAWRENCE.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

1. Appeal—Review—Weight oe Evidence.

Evidence of findings of fact will not be reviewed where there is no certificate that the case contains all the evidence on the trial.

3. Contract—Construction—Indemnity.

While plaintiff was negotiating for the purchase from defendant of a right to manufacture under certain patents owned by defendant, a question was raised as to the sufficiency of defendant’s patents. Thereupon defendant caused to be inserted in the contract of sale that plaintiff should “be defended from trouble about patents.” *Held,*that such words were equivalent to an agreement by defendant to indemnify plaintiff for expenses incurred by reason of the insufficiency of the patents.

3. Same—Evidence.

In an action for breach of contract to indemnify plaintiff by reason of the insufficiency of certain patent rights sold by defendant to plaintiff, *902plaintiff need not show that he carried the litigation in regard to the patents to the court of last resort, where it appeared that theretofore suits involving the same matter had been decided against defendant, but defendant did not show that a defense could have been established in such former suits.

Appeal from circuit court, Chemung county.

Action by Israel P. Grant, survivor, etc., against William D.

Lawrence, survivor, etc. There was a judgment in favor of plaintiff for $1,510.55 and costs, and defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Risley & Robinson, for appellant.

James A. Douglass and Frederick Collin, for respondent.

HARDIN, P. J.

Inasmuch as there is no certificate that the case contains all the evidence given upon the trial, this court is not called upon to review the evidence of the findings of fact made by the trial court. Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. 1022; Murphy v. Board of Ed., 53 Hun, 171, 6 N. Y. Supp. 99; Sewing Mach. Co. v. Best, 50 Hun, 76, 4 N. Y. Supp. 510; Koehler v. Hughes, 73 Hun, 167, 25 N. Y. Supp. 1061; Hyman v. Friedman (Com. Pl. N. Y.) 18 N. Y. Supp. 446; Koehler v. Hughes (Sup.) 25 N. Y. Supp. 1061.

2. When the plaintiff’s firm became a purchaser from the defendant’s firm, both parties understood that the articles to be sold were patented articles, and that such articles were manufactured in such a mode and manner as to be protected by the patents under which the defendant’s firm was operating. Some hesitation was evinced by the plaintiff’s firm, at the time of the negotiations, in respect to the sufficiency of the defendant’s patent to cover the harrows in question, and there was inserted in the contract the following words: “Grant & De Water to be defended from trouble about patents.” In construing those words, it is the duty of the court to look at the surrounding circumstances,—the situation and relation of the parties to the transaction then in hand, evidenced by the contract entered into by them. In Griffiths v. Hardenbergh, 41 N. Y. 464, it was held that the court is to be assisted in the interpretation of a written contract by proof of surrounding facts as they existed at the time of its execution and delivery. That case is approved, and the doctrine thereof reaffirmed, in Dodge v. Zimmer, 110 N. Y. 48, 17 N. E. 399. Evidently the purchasers,, by soliciting and receiving the words we have quoted, desired to be entirely indemnified, protected, and saved from all “trouble” which might come to them by reason of purchasing and selling the harrows that the defendant’s firm then contracted to sell and deliver to the plaintiff’s firm. The words were prepared by the seller, and ought to be construed most strongly against the defendant’s firm. Noonan v. Bradley, 9 Wall. 394; Dodge v. Zimmer, 110 N. Y. 43, 17 N. E. 399. In Brewster v. Countryman, 12 Wend. 446, where the vendor of property, in connection with the terms of sale, said to the vendee “that he would see him out of it,” it was held that *903these expressions were equivalent to an agreement to indemnify; and, near the close of the opinion in that case, Savage, C. J., said:

> “That the words ‘see him out of it,’ in the connection in which they stand, can mean nothing else than to indemnify, or save harmless, seems to me quite clear. If it was a cant phrase or provincialism, meaning something else, evidence should have been offered to prove it, but then the matter must have been submitted to the jury.”

3. We think it is not a defense to the action for a breach of the defendant’s undertaking that the action brought by Olin & Co. against plaintiffs was not resisted by means of a protracted litigation ending in the supreme court of the United States. Decisions had been made prior to the 21st of August, 1886, adverse to the position of the defendants in respect to the matter involved in the Olin & Co. suit. It would have been competent for the defendants in this case to have introduced evidence, by way of defense, showing that a complete defense existed to the suit. Such evidence was not produced by the defendants. In Insurance Co. v. Wilson, 34 N. Y. 275, where the parties had entered into a general covenant of indemnity, and it was insisted that they had not had opportunity to defend suits, it was said, in the course of the opinion of Smith, J., at page 279:

> “Although they had no opportunity to defend the Barnum suit during its progress, yet, if they are allowed in this action to avail themselves of any defense that might have been interposed successfully in that suit, they are not prejudiced by the want of notice. Such opportunity is given them by holding that the judgment in the Barnum suit, although prima facie evidence of the validity of the claim thereby established, is not conclusive against them, and they may be let in to show that it was obtained by collusion, or that a valid defense existed to the claim, which the insurance company neglected to set up.’’

The costs in the suits brought against the plaintiffs’ firm, and purchasers from plaintiffs, as well as the services for an attorney, rendered necessary to extricate them from the trouble they were in by reason of the failure of the defendants to perform their covenant, seem to be legitimate items of damage to be assessed against the defendant. In Kip v. Brigham, 7 Johns. 171, it was said by Kent, C. J.:

> “It is enough for a party, in order to maintain his action on a bond of indemnity, to show that he was liable and had paid the debt, or that he was sued, or that he was even exposed to a suit. * * * The costs were part of the loss and damage which the plaintiff had sustained by means of the default of the defendants in not satisfying the creditor.”

Hastie v. De Peyster, 3 Caines, 190.

4. We have looked at the numerous exceptions taken during the progress of the trial, and are of the opinion that none of them present any error requiring us to interfere with the conclusion reached at the circuit. The foregoing views, as well as those expressed in the opinion delivered by the learned trial judge, lead us to the conclusion that the recovery should be sustained. Judgment affirmed, with costs. All concur.