Elizabeth Warfield & Co. v. Goodloe ( 1871 )

Opinion oe the Court by

Judge Pryor :

If the writing, upon which this suit is instituted, can be regarded as an obligation upon which the appellees are personally liable, it must be construed as a guaranty upon their part that they will leave the appellants harmless in the event they shall suffer loss from pursuing with proper diligence, their vendor Johnson. The appellees had no interest whatever in the sale and delivery of the whisky by Johnson to the appellants, and the only consideration upon which the validity of the obligation is based, was the refusal on the part of appellants to pay to Johnson the money on the whisky until this writing was executed. Johnson’s liability to the appellants originated the moment this whisky was seized and confiscated by the government officials, and all that the appellees agreed to do was to leave the appellants harmless in the event they lost the whisky and failed to recover the money back from their vendor, Johnson. The petition fails to allege the exercise of any diligence in pursuing their remedy against Johnson, or his insolvency, and the proof is as silent upon this subject as the petition. The judgment of the court below is affirmed.