McCambridge & Co. v. O'Callaghan
27 Pa. Super. 199
Pa. Super. Ct.
1905
Check Treatment

Opinion by

Henderson, J.,

Plaintiff’s action was brought on the defendant’s guaranty of a written order, drawn by J. F. Lenahan on George Pierson. The guaranty is in writing indorsed upon the back of the order, and is absolute on its face. It is averred in the declaration that the guaranty was the consideration and inducement for the delivery of the goods for which the order was given. Neither fraud, accident, nor mistake in the execution of the guaranty is alleged in the affidavit; nor is it alleged that a fraudulent use is being made by the plaintiff of the guaranty. The affidavit admits that the plaintiff declined to accept the order given by Lenahan without the defendant’s guaranty, the latter being surety for Pierson on the contract for the construction of government work.

The defendant avers that he agreed “ that out of the funds to be paid by the government or Pierson to him, he would see that the amount of the plaintiff’s claim was paid to them.” He further alleges that it was understood and agreed that this involved upon the part of the defendant no personal liability, but only to pay to the plaintiff out of funds which might be paid to him by the government or by Pierson, a sum sufficient to satisfy the plaintiff’s claim; and that it was upon this agreement he executed the guaranty. It is not alleged that the de*203fendant had any claim upon which money was to be paid to him by the government, or that Pierson was under any legal obligation to pay any money to him, or that the government or Pierson had promised to pay him any money. The averment in effect is, that he agreed, in the event that money came into his hands from the government or from Pierson, sufficient in amount to pay the plaintiff’s claim, he would apply it to that purpose. He did not undertake to secure money, or to do anything to cause payment to be made to him. Such a guaranty would create no obligation, for if payment were made to the defendant to be applied on the plaintiff’s claim, he would become liable by the fact of such payment to him, and no greater liability would arise by reason of the contract of guaranty. Such a contention is a direct contradiction of the terms of the paper itself, and defeats the very object of the guaranty.

The case presented is not one of an agreement to look to a particular fund for payment. So far as appears in the case, the defendant had no legal control over money to be paid by the government on account of the contract; nor was it apparently within his power to direct the manner of payment. If we are to accept the defendant’s version of the transaction, he was to pay if money was given to him with which to make payment; otherwise no liability was to exist. The defendant’s undertaking does not bear this interpretation, and his obligation is not to be destroyed by parol evidence offered to establish the alleged fact. His defense amounts to this : That the guaranty was not to be binding according to its terms, but only in the event that money came into his hands to be applied for that purpose. The evidence offered is not admissible to defeat the plaintiff’s action: Hacker v. The National Oil Refining Company, 73 Pa. 93; Phillips v. Meily, 106 Pa. 536.

If it were made to appear that the contract alleged, if established, would avail as a defense, it is not sufficiently averred that the defendant entered into the guaranty on the faith of the plaintiff’s agreement not to hold him personally responsible, and that without such agreement, the defendant would not have executed the guaranty. The court was not in error in making the rule for judgment absolute, and the judgment is, therefore, affirmed.