Friedenberg v. Auld

Citations

• 5 Kan. 452

Syllabus

<p>1. Contracts : Construction of. — F., et al.} holding the note* therein mentioned against T., sued A. upon the following agreement: “ I have in my hands freight bills in favor of Geo.W. Taylor, due on the delivery of freight loaded on the said Taylor’s train at this time. When the above money is collected, I agree to take up note of said Taylor bearing date September 25, 1865, and in favor of H. Friedenberg & Co.” Signed, “David Auld,” and also upon two other instruments, signed by the same party. Held: Under such agreements it was not incumbent upon A. to force the collection of such freight bills.</p> <p>2. Id : Guaranty. — Neither did A., by entering into such agreement, guarantee the delivery of the freight for which such bills were given. Nor did he thereby guarantee that such bills should be collected.</p> <p>3. Id: Action. — In such case the obligation of A. being conditional, it was necessary for the plaintiffs to show that the money due on such freight bills came into the hands of the defendant, or that his failure to receive it was by some fault, fraud or procurement on the part of such defendant, before a suit could be maintained against him therefor.</p>