Bagley

One Gould made and delivered to plaintiff the following writing:

*784 Plaintiff brought this action against the Cohens upon the above guaranty, and judgment was taken against them by default. They have appealed from this judgment, and attack the sufficiency of the complaint.

Upon examination of the pleading, we are satisfied that it has not strength sufficient to support the judgment. Gould’s promise was to pay $310 to Bagley out of the profits of his raisin-packing business. If there were no profits, he could not be compelled to pay from other property. His liability upon the contract was limited to payment from a particular and special fund. If no fund existed, there could be no payment. The Cohens only guaranteed to make good the promise of Gould; that is, if profits were made, the obligation should be satisfied to the extent of those profits. They gave a conditional guaranty, and that condition was dependent upon the making of profits by Gould. There had to be profits made by Gould from the business before the liability of the guarantors ■attached. The complaint contains no allegation that profits were made, and hence shows no liability against them.

The second count in the…