
    McCown v. Muldoon, Appellant.
    
      Contract — Suretyship—Guaranty—Judgment.
    A dispute having arisen between McCown and Quigley as to firm goods taken by Quigley and not accounted for, a written agreement was entered into by which McCown was to bring a suit against Quigley. It was provided: “ Should a judgment be recovered in said action the said Quigley covenants to pay the same.” On the same day that the agreement between McCown and Quigley was executed, Muldoon executed an agreement by which he covenanted “that the amount which may be due to McCown by Quigley under the foregoing agreement will be paid by him to the extent of $2,500.” McCown recovered judgment against Quigley, who appealed the case to the Supreme Court. On January 25, 1892, the judgment was affirmed. Prior to this date McCown recovered a judgment against Muldoon for $2,500. Muldoon appealed, claiming that he was not liable until the judgment against Quigley was disposed of in the Supreme Court. On January 26, 1892, Muldoon’s appeal was called for argument. Held, that the judgment against him should be affirmed.
    
      Argued Jan. 26, 1892.
    Appeal, No. 83, Jan. T., 1892, by John Muldoon, defendant, from order of C. P. No. 3, Phila. Co., June T., 1891, No. 1282, entering judgment for want of a sufficient affidavit of defence in favor of Frank C. McCown and John A. McCown, plaintiffs.
    Before Paxson, C. J., Sterrett, Green, Williams, McCollum, Mitchell and Heydriok, JJ.
    Assumpsit on a contract under seal. From the plaintiff’s statement it appeared that a dispute having arisen between plaintiffs and their partner James J. Quigley, as to firm goods taken by Quigley and not accounted for, an agreement in writing and under seal was entered into on October 13, 1890, by which it was agreed that a suit should be brought by the plaintiffs against Quigley to determine the value of the goods taken. The agreement provided as follows: “.Should a judgment be recovered in said action the said James J. Quigley covenants to pay the same subject to a credit however as hereinafter set out. Frank C. McCown and John A. McCown agree to allow the said James J. Quigley (being the agreed value of his interest in the said firm) the sum of Two Thousand Dollars which said sum shall go in reduction of any judgment obtained in the above mentioned suit.”
    On the same day the defendant executed the following contract :
    “ I John Muldoon covenant that the amount which may be due to Frank C. McCown and John A. McCown by James J. Quigley under the foregoing agreement will be paid by him to the extent of Twenty-five Hundred Dollars.”
    On August 1, 1891, the plaintiffs recovered a judgment against Quigley for $8,654,68. Quigley took an appeal. The Supreme Court affirmed the judgment on January 25, 1892. After the judgment in the common pleas was rendered, demand was made on Muldoon for payment of $2,500, and on his refusal to pay it this suit was brought. Muldoon in his .affidavit of defence averred that the plaintiffs had no right to bring any action against him pending Quigley’s appeal to the Supreme Court.
    The court made absolute a rule for judgment for want of a sufficient affidavit of defence.
    
      
      Error assigned was the order of the court.
    
      Francis E. Garrett, E. Cooper Shapley and William Gorman with him, for appellant.
    
      R. C. McMurtrie, for appellee, was not heard.
    January 26, 1892,
   Per. Curiam,

at bar.

Judgment affirmed.  