Page:Federal Reporter, 1st Series, Volume 8.djvu/156

laQ IEDEBAL BEFORTBB. �Phenix Iks, Co. v. Louisvillb & Nashvillb E. Co. {Uireull Court, E. D. New Tark. July 13, 1881.) �1. GUABAIITY OF COLLECTION— PhOMISK—CoIISTKUCTIOK. �A promise " that if the plaintiff would endeavor to collect the amount of the . loss described from the Grand Trunk Railway Company, they, the defendants, would pay the paid claim if the Grand Trunk Railway Company did not do so," is, in legal effect, a guaranty of the collection of the debt. �Wingate e Cullen, for plaintiflf. �Poster e TIiom.son, for defendant. �Benediot, D. J. The plaintiff, suing in his own name as the assignee of a chose in action, cannot maintain the suit except upon the theory that the cause of action sued on is the new promise made to the plaintiff hy the defendant set up in the complaint, viz. : that if the plaintiff would endeavor to colleet the amount of the losa described from the Grand Trunk Eailway Company, they, the de- fendants, would pay the said claim if the Grand Trunk Eailway Company did not do so; Thia, cause of action is, in legal effect, a guaranty by the defendant of the collection of the debt described, and resort to a suit or some other legal pcoceding for the enforcement of the debt is a condition precedent to a recovery from sueh a guaranty. Taylor v. Biirton, 8 Cow. 628. No suit or other legal prOceding against the Grand Trunk Railway is averred. The allegation of the complaint is that "the plaintiff; duly made such endeavor, and went to great trouble andincurred considerable disbursementsin endeavor- ing to induce said Grand Trunk Eailway to pay said claim." Thia allegation is equivalent to saying that the plaintiff endeavored to colleet the debt by endeavoring to induce the Grand Trunk Eailroad Company to pay the claim, and not otherwise. Upon the face of the complaint, therefore, compliance with the terms of the contract dpes not appear, and the. complaint must be held bad. �There must be jndcfment for the defendant on the demurrer, with leave to the plaintiff to amend on payment of costs. ,; ��� �