Ward v. Fryer's Executrix — 19 Wend. 493

Majority

p. 494

Ward vs. Fryer’s Executrix.

NEW.YORK,

May, 1838.

Headnote

An action will not lie on a promise by one to indemnify and save another harmless from all loss which he may sustain in consequence of making advances to a third person at the request of the promissor, without showing an ineffectual attempt to coerce payment from the party to whom the advances were made, or that endeavors to collect the money from him would have been useless by reason of his insolvency or otherwise.

Demurrer to declaration. The plaintiff declares in assumpsit, on a promise of the testator that in consideration that the plaintiff would advance to one J. F. Smyth money, for the purpose of facilitating his advancement in life, he would indemnify and save the plaintiff from all loss which he might be put to by reason of such advancement of money as aforesaid, for an amount in the whole not exceeding $5000. The plaintiff then avers that he advanced to J. F. Smyth, for the purpose aforesaid, the sum of $5000, and although the same had long since become due and payable to the plaintiff, yet the same had not been repaid by the said J. F. Smyth, although often requested so to do: that the testator had notice of the premises, bnt did not and would not indemnify and save the plaintiff harmless from any loss or damage by reason of his advancing the said money to the said J. F. Smyth, although often requested so to do; by means and in consequence whereof the plaintiff has lost the said sum of $5000. The declaration contains a second count similar to the above. The defendant demurs specially, and the plaintiff joins in demurrer.

S. Stevens, for the defendant.

M. T. Reynolds, for the plaintiff.

p. 495

By the, Court,

The plaintiff has framed the special counts as though the promise of the testator was absolute, that he would pay the money which might be advanced, in case it should not be paid at the proper time by Smyth. J think that was not the legal effect of his under~ taking. It was not a promise to pay-but an engagement to indemnify and save the plaintiff harmless from all loss by reason of advancing the money. Smyth was the princi~ pal debtor, and for aught that appears he may be abundantly able to pay~ It should, I think, be averred, that an unsuccessful attempt was made to collect the money from him; or that, in consequence of his insolvency, or for some other reason, such an attempt would have been useless. The plaintiff says that Smyth did not pay, and that the testator did not indemnify, by means and in consequence whereof he has lost the money. The conclusion does not legitimately follow from the premises. A debt is not necessarily lost, merely because the debtor neglects or refuses to peform his engagement.

Judgment for the defendant.