A lease had been granted to G, who assigned the term to the Plaintiff, who later assigned on to the Defendant. The assignees each covenanted to perform the obligations under the lease, and to indemnify the assignor. Rent not being duly paid, and the premises being out of repair, the freeholder sued G for the rent, and got judgment by default for the rent and for damages for the want of repair. G paid these amounts and then sued the Plaintiff for the amount so paid and his costs. The Plaintiff defended that action unsuccessfully, and became liable to pay the sum claimed and G’s costs. Not yet having paid, he sued the Defendant in turn.
Held: The Plaintiff was not entitled to recover his costs of resisting G’s action, because such resistance was unreasonable and unnecessary, but he was entitled to the rent and damages payable to G, and the costs of the freeholder’s action against G.
The rent and damages and the costs of the freeholder’s action against G were ‘properly incurred for the purpose of ascertaining the amount of the Defendant’s liability’ (including quantifying the liability for the want of repair) but that all costs thereafter were unnecessary and superfluous and could not be recovered. Pollock CB: ‘There is no doubt that, at one time, very wild notions were entertained with respect to the contract of indemnity; but these notions are now exploded, and it is considered, that, by a contract of indemnity, is meant that the party indemnified may recover all such charges as necessarily and reasonably arise out of the circumstances under which the party charged became responsible.’ and ‘As I have stated, it seems that under the contract of indemnity the party is entitled to recover those costs only which have been fairly and reasonably incurred.’
Judges:
Pollock CB
Citations:
(1851) 6 Exch 730
Jurisdiction:
England and Wales
Cited by:
Cited – Scottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 14 May 2022; Ref: scu.249878