Kaiser & Brother v. Johnson

Fish, J.

The question for our consideration and determination in this case is, whether the petition set forth a cause of action, without an averment that Stewart Johnson had executed a mortgage to the plaintiffs, to secure their endorsements of his commercial paper. We think the petition good without such averment. Considering the contract in its entirety, as set forth in the bond, there is nothing to indicate that Kaiser & Brother undertook to have Stewart Johnson execute to them a mortgage, to secure their endorsements of his paper. As the contract recites, they were to receive no consideration whatever for their endorsements, and were acting “simply out of accommodation to the said Stewart Johnson, and at his request and solely for his benefit.” As they were not to be benefited, it is entirely improbable that they should have bound themselves to obtain from Stewart Johnson a mortgage. The contract was signed only by G. C. and L. H. Johnson. They alone undertook to perform its obligations. They were interested in procuring the endorsement of their brother's paper by Kaiser & Brother, and to obtain it obligated themselves to indemnify Kaiser & Brother against loss by reason of such endorsement, and to see, as we construe the contract, that Kaiser & Brother should be further protected against their endorsement by a mortgage from Stewart Johnson to them. The giving of a mortgage by Stewart Johnson to Kaiser & Brother, to further provide against their endorsements for him, did not, therefore, constitute a condition precedent to the liability of G. O. and L. H. Johnson upon their bond; and the court below erred in sustaining the demurrer.

Judgment reversed.

All the Justices concurring, except Lewis, J., who dissented.