Ward v. Fryer's

19 Wend. 493

Opinion

By the, Court,

BRoNsow, 3.

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.