x999-1" type="majority"> 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 examination of the narr. we think it clearly alleges that the levy was made according to the directions of *508 the defendant Arnold and, as we have already said, it is not to be supposed that the plaintiff, the sheriff, had knowledge that the value of the property taken was excessive when compared to the amount of the judgment. It follows, therefore, that there was no error in overruling the demurrer to the narr.

2. This brings us to a consideration of the rulings upon the prayers. The plaintiff’s prayer which was granted is objected to on the grounds that “there was no legally sufficient evidence to find the facts therein stated as the ground of the plaintiff’s right to recover in this action ; (2) because there was no evidence in the record to prove the fact that Wilson had recovered damages against this plaintiff for an excessive levy; (3) because the Court is asked to find that the action of Fowler, as sheriff, in the case against Wilson, was done by the lawful authority and direction of said Arnold, whereas, if it be found that Arnold did give Fowler the instructions alleged they were unlawful; and lastly, (4) because the prayer asks the Court to find for the plaintiff whether the defendant did or did not expressly promise' to indemnify the plaintiff in the premises.”

First then, does the record disclose evidence legally sufficient to enable a jury or the Court, if they believe it, to find the facts alleged in the narr. Without going into the details of the testimony it is sufficient to say that in our opinion it fully sustains every material averment of the declaration.

Without undertaking to determine whether or not there is any evidence in the record to show that the damages recovered in the former case were for an excessive levy, it is sufficient in answer to this objection to say that no special objection was filed to the prayer on this ground, and hence that defect, even if it exists, cannot be taken advantage of here. We do not think the prayer can be.properly construed as asking the Court to find that the action of the sheriff in levying the execution, was done by the lawful authority of Arnold; on the contrary, what it does ask the Court to find was that the sheriff and his deputy believed that they were acting by such authority. If they honestly believed, as the prayer puts *509 it, that they were acting under the lawful authority of Arnold, then the fact which was subsequently ascertained by the decision of this Court in the former case, viz., that the levy so ordered by Arnold was excessive and therefore unlawful, will not prevent a recovery in this case. Nor do we think the prayer is defective because it asked the Court, if it should find all the other facts in the case, to say in effect that it was immaterial whether the promise to indemnify the plaintiff was express or implied. Murfree on Sheriffs, supra; 2 Freeman on Executions, supra.

We have already said that in our opinion there is legally sufficient evidence in the case to entitle the plaintiff to recover. Indeed, if the evidence on the part of the plaintiff was believed by the Court it was impossible to arrive at any other conclusion. Hence it follows that there was no error in granting plaintiff’s prayer nor in rejecting defendant’s first prayer.

Defendant’s remaining prayer asks the Court to declare, as matter of law, that the contract. alleged in the declaration is illegal. This illegality, as the defendant contends, consists in the supposed fact that the contract provided, contrary to the provisions of the Code, Art. 83, sec. 3, “Sales and Notices,” that the peaches after being picked and hauled to the plaintiff’s station on the railroad were to be transported to the city of Baltimore. But the contract does not so provide. It is probable that such was the intention, but, if so, such intention never was carried out. But in addition to this, the provisions of sec. 3 as to ten days’ notice, as well as to the supposed requirement that the sale should be made in the county where the goods are located when seized in execution cannot be applied to a perishable crop of peaches. It would be the duty of the sheriff to ask and obtain from the Court authority for an immediate sale at such place as it could be effected to the best advantage of all parties interested. Thus it is said in Poe's Prac., sec. 669 : “If the levy is made upon a cargo of perishable- articles * * * * and the sale is delayed until they become altogether or partially valueless, the plaintiff’s right of action against the sheriff for the consequences *510 of his neglect of duty, will be plain. The duty of the sheriff, in brief, is to execute the writ promptly and in such a way as will be most advantageous to all parties concerned.” It is to be presumed that after removing the peaches from the orchard of the defendant to the farm of the plaintiff, the sheriff would, as he was in duty bound, have sought and obtained from the Court the necessary authority to so make the sale as to yield the best possible price. On the whole case we find no reversible error, and the judgment appealed from will be affirmed.

(Decided January 17th, 1902.)

Judgment affirmed with costs.

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