The defendant guaranteed under a penalty Reuben Carpenter’s performance of an award in favor of the plaintiff. By the award Reuben was required to pay a certain amount due to the plaintiff, and also to pay certain sums due from him and the plaintiff jointly to one Drury and to the Oxford Bank, “ and save the plaintiff free and harmless.” Upon failure to perform judgment was recovered against the defendant for the penalty, and an execution issued for the amount then due directly from Reuben to the plaintiff, as ascertained by the award. The plaintiff now, by scire facias, demands an additional execution for further breaches of the contract. Gen. Sts. c. 133, §§ 9, 10.
Upon the facts agreed the plaintiff fails to show that any additional sum has become due. The guaranty in legal effect is a contract of indemnity. It seems to have been so treated by this court when the original judgment was rendered, 13 Allen, 19, and the plaintiff then only took judgment for the amount awarded as due to him. It is given to secure the plaintiff against actual loss in case of failure on the part of the principal to perform. Taken in connection with the award, the agreement is to save harmless from certain unpaid liabilities for which the parties to the award were jointly liable. It is not a promise to pay those liabilities absolutely. Indemnity can be had only to the extent of the loss. If the plaintiff is not called on to pay and does not pay, the liability cannot arise. This case is distinguishable from a class in which damages have been awarded, though *350no payment has been made. In those cases the contract was expressly to pay the debt on which the default was made.
It is agreed that no money was paid by the plaintiff for the releases obtained from Drury and the bank, and it does not appear that he has sustained loss or damage by reason of these liabilities. His situation in respect to them remains as it was when the original judgment was rendered, except as changed by these releases. The allegation in the petition is that he has been compelled to pay, but such is not the proof.
The papers which were executed between the bank and the assignee of the plaintiff are in substance a discharge of the joint liability of Wallis & Carpenter in consideration of the transfer of an interest in the original judgment against the defendant for the penalty. The difficulty is not avoided. This is a proceeding at law. The bank cannot thus assume the rights of the plaintiff, or be substituted for him so as to avail itself of the indemnity held by him. No claim to indemnity has arisen. It is not like the case where a creditor is sometimes permitted to be subrogated to the securities held by the surety.
Judgment for the defendant.