The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-07-09
UNITED STATES SUPREME COURT.
Freedom Of Judicial Sales-Tho Avoidance Of
.lt Contracts Against Public Policy.


pock-Appeal from the Circuit Court for the North.
ern district Of Illinois. The defendant is citizen OF
New York. Mr.. Justice Swayne delivered the opinion
OF the court:-Ths is writ Of error to the Circuit
Court OF the United States for the Northern district
OF Illinois, Several exceptions appear In the record
which are abandoned in the printed argument SUBJ
mitted by the counsel for the plaintiff In error We
shall consider only those that insisted upon. 1t
Is said that the argument between the parties was
invalid because calculated to interfere with and
prevent the fairness and freedom OF judicial SALE
andprevent competition. and therefore against public
policy" The contract was that the defendant in
error should procure judgment against Chaplin Co.
for the rent In arrears levy upon the machinery and
and that the plaintiff in should bid for them the
amount OF the Judgments. The validity OF such an
the parties animated, and the OBJECT sought to
be accomplished. II the object be fair, II there
mo ds re- SGar no purpose to prevent the
sary effect Of the arrangement In way contrary to
public policy and the agreement is unobectionable
our attention has been called there was an agree
ment between two persons that one Of them only
should bid, and that after buying the property he
should sell part Of 1t to the other upon such terms
as the witnesses to the agreement should decide to
be just and reasonable. Phippen Vs. SNckney, 3Met-
should bid certain amount for O steamboat about
to he sold under chatel mortgage, and transfer to
the mortgagor an individual interest Of onethrd
upon his paying corresponding amount of the pur-
chase money (Barne vs.. Drew, DEMO, 1901 In
third case the agreement was between senior and
amount Of his debt for specific part Of the mort.
gagged premises. Garrett vs.. Mors ct AL 20 ILL.,,
Ss2l In each Of these cases the arrangement was
judicial authority Of the State In the case before
us the agreement was that Wicker should bid.
There was nothing that forbade aoppocs to Did, Oi
he thought proper to do so, and nothing which had
any tendency to prevent bidding by others. The OBJ
ject OF the contract obviously was to be secure-nOt
the ' arrangement to the interests Of the judgment
Jet is viewed in the light Of tie consequences which
followed the breach OF the agreement. Instead
% s s was for on s Sss s Of The
property was struck or to him for nominal sum.
There was no error in the ruling OF the court upon
structing the Jury that the plantif entitled to
recover the measure Of damages was the amount Of
general rule is that when wrong has been done and
the law gives remedy, the compensation shall be
equal to the injury: The latter IS the standard by
party IL to be placed as near as may be In the situa
ton he would have occupied If the wrong had not
been committed. In some instances he is made 10
bear part Of the loss, and in others the amount to
be recovered Is allowed, as punishment and OK
ample, to exceed the limits OF mere equivalent.
the benefit OF acOntract, and can save himself from
loss arising from breach thereof at trining ex
do il; and he can charge the delinquent party with
such damages only "a with reasonable endeavOrs and
S. sp 81 Wend oa "a Wcna Paige ST. Mason
57.) If the contract in the case before
us were, one or Indemnity the argn,
error would be conclusive. In that class OF cases
the obligee cannot recover until he has been actually
damnihed and he can recover only to the extent or
the injury he has sustained up to the time OF the In
stution OF the suit But THERE'S well settled dis
tinction between an agreement to indemnity and an
tn m ha lat tarc aa "A
be had soon there is a breach OF the contract,
and the measure OF tile damages is the fun amount
agreed TO be paid. In q note or Sergeant Williams
to Cutler and Others Southern and Others IL Is
said that In all Of covenants to indemnify and
save harmless the proper plea Is nor dgnnIacns
ply 1t, but that this plea cannOt be pleaded" when
the condition is to discharge or acqut the paintn
from such bond or other particular thing for the de-
PENDANT must set forth ailrmativey the special man
ner OF performance. LANDER Rep. III, note ~ In
lease coyeaanted TO fulfil ali the covenants which
the lessee was bound to perform IL was held that
the agreement was substantially covenant TO pay
the rent reserved as 1t should accrue that plea OF
NON ddnnTcus was bad. and that the assignee
could recover the amount OF the rent In arrear as
jury himself by the delinquency OF the assignee
The assignee liable also TO the lessee for the same
rent By priority Of estate the y was qnap
matter Of Negus wend., !, 503 the covenant was
to pay certain partnership debts and to indemnify the
held that the covenant 20 indemnify did not impair
the effect OF the covenant to pay and the prin.
oipe applied as In the case or Post Jackson.
He might refer 70 other authorities 10 the
same erect but II Ia deemed unnecessary. In the
before us In the cases referred TO- the defen
dant made valid agreement In effect TO pay certain
specific liabilities They consisted Of the judgments
or Hoppock against Chaplin Co. " Wicker had full
filled the Judgments would have been extingushed.
As soon as Hoppock performed, the promise OF
Wicker became absolute. No provisioR was made
for the non-performance Of Wicker and the further
pursuit OF Hoppock by the judgment debtors. In
demnity was not named. That idea seems not to
have been present TO the minds OF the parties The
purpose Of Hoppock obviously was to get his money
without the necessity Of proceeding further sains
Chaplin a Co. than his contract required. There Ia
no ground upon which Wicker can properly claim
He removed and keeps the property he
was to have bought IN The consideration for his
became complete when 10 Was exposed
to sale. The amount recovered only puts the other
party where he would have been II Wicker had full
filled instead OF violating the agreement The rule OF
damages given to the jury was correct Ihe ]udg
menf below 10 affirmed.
TINE WESTERN UNION TELEGRAPH COMPANY.