Kimball

Appeal by the plaintiffs from a judgment in favor of defendants and from an order denying a new trial. The action is by and on behalf of Ella S. Rogers, the real party in interest, joining with her Thomas L. Rogers, her husband, to recover upon a certain contract of indemnity, set forth in the complaint. The complaint, after alleging the death of James S. Gordon, and the appointment of the defendant Jessie Gordon Whittlesey as administratrix of his estate, alleges in substance that on February 25, 1882, the plaintiffs and the defendants, Warren C. Kimball and Moses A. Luce, and said James S. Gordon, executed their promissory note for ten thousand dollars, payable to the order of the Consolidated Bank of San Diego six months after date, with interest, and that said bank afterwards indorsed said note to Bryant Howard; that plaintiff Ella S. Rogers signed said note at the request and for the accorfimodation of said Kimball, Luce, and Gordon; that on February 27, 1882, plaintiff Thomas L. Rogers conveyed and caused to be conveyed to said Luce, Kimball and Gordon a one-fifth interest in and to a certain concession made by the Mexican government of the right to construct a railroad to…

I concur. The action is founded not upon a release, but upon a contract to indemnify; and there can be no recovery upon such a contract when it appears that there has been no performance, or offer to perform, of the promise which was the sole consideration of the agreement to indemnify.

Rehearing denied.