
    Ralph v. Eldredge et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 26, 1890.)
    Gtjakanty of Collection of Claims.
    In an action on a bond conditioned for the payment of one-half the amount of the accounts and claims of a firm “that shall prove uncollectible, ” there can be no recovery without proof that the claims were prosecuted to'judgment and execution. ■
    Appeal from j udgment on report of referee.
    Action by Murray N. Ralph against Lorenzo D. Eldredge and George W. Seymour to recover on a bond executed by defendants. From a judgment dismissing his complaint, the plaintiff appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      J. C. Keeler, for appellants. O. P. Abbott, for respondents.
   Learned, P. J.

The plaintiff and defendant Eldredge had been copart-. ners. On the 25th of November, 1884, the firm dissolved; plaintiff sold to Eldredge the stock, and Eldredge conveyed to plaintiff his, interest in the notes, accounts, and demands owing the firm. At the same time, Eldredge executed to plaintiff a bond, with defendant Seymour as surety. The condition of the bond was that Eldredge should pay to plaintiff one-half of the' amount of notes, accounts, and claims of the late firm assigned by Eldredge to plaintiff “that shall prove to be uncollectible, if any such there be,” wiuh interest from the date of the bond. On the trial the plaintiff produced a list of claims which he claimed to be uncollectible, and testified or offered to testify, as to each, that he was personally acquainted with the financial ability of each, and that since the assignment not one of them has had sufficient ability to pay the claim. This testimony was objected to as incompetent, and the referee so held. And the referee made his report that no right of action arose-on the bond until the prosecution of the claims to judgment, and the issue and return unsatisfied of execution thereon. From the judgment thereupon entered, the plaintiff appeals.

The question here is whether it was necessary for plaintiff thus to prosecute to judgment and execution before he could recover on the bond. That question must depend on the meaning of the condition of the bond, because there is no other liability of either defendant to the plaintiff. It seems to be settled in this state that a guaranty of collection is an undertaking to pay the sum of money guarantied, provided the principal debtor is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him. Insurance Co. v. Wright, 76 N. Y. 445; Craig v. Parkis, 40 N. Y. 181. The plaintiff urges that the bond does not guaranty the collection of these claims, but is only a contract to pay plaintiff one-half of the amount of those which should turn out bad. But the bond uses the word “ uncollectible, ” and the question must be, what is the legal meaning of that word? That word has a definite meaning, as decided in the cases above cited. And that meaning should be here enforced. The plaintiff urges that the amounts are small, and it could not have been intended that they should be sued. But it would be incorrect to hold that “uncollectible” meant one thing as to small amounts and another thing as to large. The language “prove uncollectible” strengthens this view. Some process was in view by which it should be legally ascertained that the amounts were uncollectible. That process is prosecution to judgment and execution. The defendants might have bound themselves to pay half of such amounts as should not be voluntarily paid. But they did not do so. And as they were under no obligation to plaintiff except upon the bond, we think that he cannot recover without showing judgment and executions returned unsatisfied. To hold otherwise would be contrary to a familiar and settled rule of construction. Judgment affirmed, with costs.  