On August 2, 1922, the Olympic Products Company, a Washington corporation, as manufacturer, entered into a contract with the Pacific Automatic Device Company, of Portland, an Oregon corporation, as purchaser, for the manufacture and sale of 25,000 automatic *165 windshield swipes to conform to a sample furnished by the purchaser, for which the purchaser agreed to pay the sum of $1.25 each, or $31,250 in all. Other covenants in the contract are not deemed material, aside from an agreement on the part of the manufacturer to furnish a bond in the sum of $31,250 to insure the performance of the contract. August 9,1922, the manufacturer, with the United States Fidelity & Guaranty Company, as surety, entered into a bond in accordance with the foregoing requirement. The bond was in the penal sum of $31,250, conditioned that the manufacturer should well and truly indemnify and save harmless the purchaser from any pecuniary loss resulting from a breach of any of the terms, .covenants, and conditions of the contract on the part of the manufacturer. The bond also contained the usual and customary conditions and provisions, that no liability should attach to the surety unless notice of default was given; that in case of default the surety should have the right to assume and complete the contract; that in ' no event should the surety be liable for a greater sum than the penalty of the bond; and that the surety should be subject to no suit, action, or other proceeding thereon, instituted later than August 9,1923.

The present action was brought by the purchaser against the surety alone on a contract which is thus described in the complaint :

The contract thus pleaded was denied by answer, and at the close of the testimony the court below directed a verdict for the defendant. The judgment on the verdict is now before us for review. It was conceded on the trial, and is conceded now,, that the present action was not on the bond. Indeed, this is manifest because the bond is in no wise referred to in the complaint. The theory of the case, as advanced by counsel for the plaintiff in error in his brief, is this:

But the record utterly fails to show that the defendant in error executed any contract, in writing or otherwise, such as is set forth in the complaint, or any contract of any kind, other than the indemnity bond to which we have referred, and the contention that a surety on such a bond becomes a party to the original contract between the principal and the obligee in the bond and assumes all obligations of that contract, regardless of the conditions, provisions, and limitations contained in the bond or indemnity contract, finds no support in reason or authority. The contract of the defendant in error was one of indemnity only, and the obligation it assumed must be measured by the terms of the indemnity contract to which it was a party, not by the terms of some other contract to which it was not a party. Of course, the question of liability on the bond is not before us; but it would seem entirely plain that the surety incurred no obligatiqn in any event beyond the penalty of the bond, and that a. breach of the conditions and provisions of the bond would release it unless waived. *166 This, it would seem, shows the absurdity of the contention that the surety was bound absolutely and unconditionally by the terms of the contract between the manufacturer and the purchaser without limitation even as to the amount. Had the bond been for $1, instead of for $31,250, the same contention might be made.

For these reasons, the court below correctly ruled that there was a failure of proof, and its judgment is affirmed.