Dr. Koch Vegetable Tea Co. v. Gates

Per Curiam.

This action was brought by the Dr. Koch Vegetable Tea Company against the respondent Gates, alleging he had entered into a written contract of suretyship or guaranty that one C. M. Howe should perform the contract which the said Howe had entered into with plaintiffs, and alleging that the said Howe was indebted to plaintiffs in a certain sum under said contract. Upon the trial of the cause by the court without a jury, the court found .that the indebtedness of Howe was not created or incurred by him *479 under the contract for and upon which the defendant Gates became guarantor; tbat the plaintiffs and said Howe did not pursue or comply with the terms and conditions of the contract ; that there ‘was a fatal variance between the proofs adduced and the cause of action set out iu the complaint; that plaintiffs fraudulently concealed from the defendant Gates any and all knowledge of any indebtedness owing from C. M. Howe to the plaintiffs prior to the date of the execution of the contract. Erorn such findings of fact, the court found that defendant was entitled to judgment for his costs and disbursements,, and judgment was entered in accordance therewith.

The contract upon which the complaint is based is too long to he set forth in this opinion; but from an inspection of it we” are satisfied that the respondent, hy signing it, became surety only for Howe as agent of the appellants, and not in any way responsible for any debt of Howe to the company not arising from such agency. And from the testimony, which is brief, we think the court was fully justified in concluding that the indebtedness of Howe to tbe plaintiffs for the recovery of which this action was brought, was not) created or incurred hy him under the contract for and upon which the defendant Gates became guarantor, and that there was a fatal variance between the proof adduced and the cause of action set out in the complaint. This being true, the plaintiffs could not recover.

The judgment is affirmed.