Herendeen v. Wilson

Headnote

Herendeen v. Wilson, 161 App. Div. 910 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3 5,1914, modifying and affirming as modified a judgment in favor of defendants, entered upon an order of Special Term sustaining a demurrer and directing a dismissal of the complaint on the merits. The action is based upon a bond, signed and sealed by all of the defendants, the defendant Benton H. Wilson, as principal, the others as sureties, and the condition of the same is as follows: ct Now, therefore, the condition of this obligation is such that if the said Benton H. Wilson shall well and truly indemnify and save harmless the said Susan Bradnack from any and all liability, as the holder and owner of such shares of stock, to be purchased by her, and shall, within sixty days after demand, purchase from the said Susan Bradnack at the par value thereof,

all of such shares of stock, and pay to the said Susan Bradnack the par value of such said shares in cash, then this obligation shall be void, otherwise it shall remain in full force and virtue. ” • The claim of the plaintiff, administrator, is that the contract sued upon is an original agreement for the joint and several obligation to pay by all of the signatory parties to the contract, which inures to the benefit of the representatives successively of Susan Bradnack and Charles W. Edgerton. The defendants claim that the contract in suit is a special guaranty, which was made only for the benefit of Susan Bradnack and that the right to enforce the same died with her.