Kirk v. Fort Wayne Gaslight Co.

Perkins, J. Suit to foreclose a mortgage. Judgment of foreclosure. Kirk executed a bond to The Fort Wayne Gaslight Company, conditioned as follows: “The condition of the above obligation is such, that whereas the above-bound Lewis F. Kirk has this day assumed and guarantied the payment of two certain- promissory notes, bearing date the 4th day of April, A. D. 1855, for the sum of 1,000 dollars each, in favor of Deniel M. Corwin, payable at one and two years, by The Fort Wayne Gaslight Company, the latter of said notes with interest: Now, if the said Lewis F. Kirk shall well and truly pay said notes, according to the tenor of the same, then,” &c. This bond implies a debt due from Kirk to The Fort [57] Wayne Gaslight Company, which he agrees to pay by paying a debt due from that company to Corwin. L. C. Jacoby, for the appellants. To secure the performance of the condition of the bond, Kirk and wife executed a mortgage to the gas company on a certain piece of property in Fort Wayne. It is alleged in the complaint, that there was a mistake in the mortgage in the description of the property, which was corrected in the final judgment. Kirk failed to pay the notes mentioned in the bond, and failed to pay the amount of them to the gas company; whereupon this suit was brought upon the bond and mortgage. The principal objection taken to the judgment below is, that the suit is upon a contract of indemnity merely, and that no damage is shown to have accrued to the gas company by the breach of the contract. But we regard the contract as an original undertaking to pay the amount of the notes to the company, or, for their benefit, to their creditor. It implies a debt of that amount due from Kirk to the gas company. We think the suit well brought for the amount of the notes. Upon the evidence, we cannot disturb the judgment below. The judgment in form was— 1. ' That the plaintiff recover of the defendants the sum of, &c. 2. That the defendants pay it into the clerk’s office; and, in default of their so doing, that the mortgaged property be sold. 3. That the equity of redemption be foreclosed. Per Curiam. That part of the first clause of the judgment for the recovery of the money, which is against the wife, is erroneous, and is reversed. The balance of the judgment is affirmed with costs.