Walsh v. Featherstone

CANTY, J. The defendant made a bond, or instrument under seal, dated August 1, 1893, by which, in consideration of one dollar and other valuable considerations, he promised as follows: “I * * * do hereby guaranty * * * Mississippi Land, Loan & Investment Company * * * against any liability by reason of any transaction” of said company “entered into since the fourth, day of March, 1890.” [105] The plaintiff had a transaction with said company since that time, to wit, in 1891, by which it became indebted to him in the sum of $292.90, and brings this action to recover from defendant on this contract the amount so due him. On the trial the court ordered a verdict for defendant, and, from an order denying a new trial, plaintiff appeals. The order must be affirmed. In the agreement above referred to, defendant does not promise to pay any of the debts of the investment company. His promise to guaranty it against liability is merely an agreement to indemnify it or save it harmless (see Bausman v. Credit G. Co., 47 Minn. 377, 50 N. W. 496), and cannot be construed as an agreement for the benefit of third parties. Even the obligee himself cannot maintain an action on such an agreement until he has paid the claim against which he has by the contract been indemnified. Campbell v. Rotering, 42 Minn. 115, 43 N. W. 795; Weller v. Eames, 15 Minn. 376 (461). Order affirmed. On Motion for Reargument. January 20, 1897. The motion for a reargument is denied; but whether or not the obligee himself could maintain an action on this agreement is a question as to which there may be some doubt, and one which it was not necessary to pass on in this case. For these reasons the dictum at the end of the opinion stating that he cannot is withdrawn.