Wood v. Wadsworth , 1874 Ky. LEXIS 155 ( 1874 )

Opinion by

Judge Lindsay:

The undertaking of appellees was that they would indemnify and hold the appellant harmless from any loss on account of certain debts due and owing to the firm of Wood & Smith. The means by which this was to be done was by Smith paying or causing said debts to be paid.

Appellant complains, not that he has been compelled to pay any portion of these debts, but that he has been sued'on one of them, and compelled to incur expense in defending the suit. His petition discloses the fact that he made good his defense, and that, as yet, he has lost nothing “on account of his liability for said debts.”

It cannot matter to him' whether he escapes liability by reason of the debts being paid by Smith, or by the laches of the creditors. Until he has to pay something on the debts, or to meet some liability that appellees contracted that Smith should meet, there can be no breach of the undertaking. He has no right to insist that Smith shall hold him harmless by paying the debts, and in no other way. Smith may perform' the covenants by satisfying the creditors in any manner he'chooses, and Wood cannot complain until he suffers loss from his original liability on account of the failure of Smith to pay the debts, or in some other way releases him from such liability.

The attorneys’ fees and costs that Wadsworth has paid, were incurred in defending an action upon a claim he was not bound to pay, and was not required to pay, and not in discharging a liability he was under to a creditor of the firm of Wood & Smith. The result of the action demonstrated that he was not liable to the parties who sued him.

/. K. SwnrcAl, for appellant. Phister, for appellees.

He has no more right to recover from appellees the expense attending the defense of the action, than he would have had if Smith had paid the creditors, and they had then sued him. The demurrer was properly sustained.

Judgment affirmed.