#### The Blaisdell Machinery Company, Appellant, v. Frank Voightmann and Dolly Gasoline Extracting Company, Appellees.

Gen. No. 23,601.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed June 19, 1918.

Statement of the Case.

Action by The Blaisdell Machinery Company, a corporation, plaintiff, against Frank Yoightmann and Dolly Gasoline Extracting Company, a corporation, defendants, to recover on a bond, on which defendant Yoightmann was surety, given, with certain notes, by *493the Dolly Company for the purchase price of certain machinery. Service was had on defendant Voightmann only. From a judgment for defendant Voightmann, plaintiff appeals.

Abstract of the Decision.

1. Pbincipai. and subety, § 8 * — what is nature of obligation of surety. As a general rule, a surety is an original promisor and debtor from the beginning, and his obligation is primary, not collateral.

2. Contbacts, § 180* — what considered in determining meaning of contract. In ascertaining the meaning of a contract between parties, 'the words by which the obligation has been expressed must prevail over those by which the parties may have described themselves.

3. Indemnity, § 3.1* — <what is nature of obligation of surety on bond indemnifying against nonpayment of notes. Where, by the terms of a bond given in connection with promissory notes, the surety’s undertaking is that his principal will indemnify the obligee for all loss and expenses, including lawsuits and attorney’s fees, which may happen or come to the obligee by reason of the nonpayment of the notes by the principal, the surety’s liability is, as to these matters, primary, but is collateral as to the notes themselves and their payment at maturity.

4. Indemnity, § 24* — what is prima facie case in action on bond indemnifying against nonpayment of notes. In a suit against a surety on a bond given for the payment of promissory notes by which he undertakes that his principal will indemnify the obligee for all loss or expenses to the latter by the principal’s nonpayment of the notes, to make out a prima facie case, there must be evidence showing, or tending to show, that the notes are past due and unpaid and that plaintiff has suffered loss or expense by reason of the principal’s failure to pay them when due, and evidence *494merely that certain of the notes are past due and unpaid is insufficient, especially where not only is no loss shown, but it is shown that the principal is contesting the value of the consideration for which the notes were given.

*493Culver, Andrews, King & Stitt, for appellant.

Bell & Cross, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Thomson

delivered the opinion of the court.