#### Thomas Snell *et al. v.*Jonathan H. Cheney.

*Contract—liability on conditional undertaking to pay debt of another.*Where a party entered into a contract with a railway company to pay all its liabilities and that of its officers, and in which it was provided the amount *to*be paid on the debts of the company might be paid out of the proceeds of certain township and county bonds that might be issued in payment of subscription, which such party was to have, it was *held,*that he could not be held liable to a creditor of the company without proof of the issue and delivery to him of such bonds, it not being an absolute agreement to pay such debts, but a contract to pay from the proceeds of a specified fund.

Appeal from the Circuit Court of McLean county.

*259This was an action of assumpsit, brought by Jonathan H. Cheney, against Thomas Snell, Abner Taylor, James Aiken and James P. Snell.

The plaintiff recovered judgment and the defendants appealed.

Messrs. Weldon & McNulta, for the appellants.

Mr. O. T. Reeves, for the appellee.

Mr. Justice Craig

delivered the opinion of the Court:

The Lafayette, Bloomington and Mississippi Railroad Company was indebted to the plaintiff in this action, in the sum of $738, for which a judgment was rendered in the Woodford circuit court. While this indebtedness ivas in force and unpaid, appellants, Snell, Taylor & Co., entered into a contract in writing with the Lafayette, Bloomington and Mississippi Railroad Company to build the road from Bloomington to the Indiana State line, for a certain consideration, named in the contract. The contract also contained a provision that Snell, Taylor & Co. should pay certain indebtedness of the railroad company, which was as follows:

> “ Under the provisions of the lease, heretofore referred to, Snell, Taylor & Co. also agree that they will pay said Lafayette, Bloomington and Mississippi Railroad Company $2500 out of the proceeds of the first bonds, (voted in aid of said road,) which shall come into the possession of the said Snell, Taylor & Co., under the terms of this contract, and shall pay all liabilities of said company and liabilities of any of the officers of said company, incurred on account of fencing said railroad, except a debt of Snell, Taylor & Co. of about $27,000, which is in a decree in the McLean county circuit court. The amount specified in this contract to be paid by Snell, Taylor & Co. on the debt of said railroad company, may be, by them, paid out of the proceeds of the first township and county bonds which may be issued in payment of subscription of stock of said road.”

*260Under this clause of the contract, the plaintiff brought suit against Snell, Taylor & Co. to recover the amount due from the railroad company to him.

The contract of Snell, Taylor & Co. to pay the debts of the railroad company can not be regarded as an absolute agreement to pay, but it was a contract to pay from the proceeds of a specified fund,—from the proceeds of the-first township and county bonds which might be issued in payment of subscription of stock. Under this contract, before the plaintiff would be entitled to recover, it devolved upon him to prove that township or county bonds, as specified in the contract, had been issued and delivered to Snell, Taylor & Co. This he failed to do. The record does not show that they ever received a single bond, and as they were only bound to pay from the proceeds of the bonds, the evidence before the court was not sufficient to authorize the judgment.

The judgment will be reversed and the cause remanded.

*Judgment reversed.*