John Adamowicz brought action in the Cleveland Municipal Court against Stanley Klon-owski, upon a verbal promise of guaranty-ship. He set forth in his statement of claim that K. acted as an agent to sell property owned by some other person, and A. bought it, and got a warranty deed, which sets forth that it is clear and free of all incumbrance except taxes and special assessments. There were two writings made by K., one of which he gave to A. Afterwards it was found that there was a sidewalk assessment on the property. A. then brought this action to recover the unpaid tax. It was found, in court, that the writing given by K. to A. sustained the deed; but the one K. retained so read as to exclude the assessment.

But the Court of Appeals declined to decide which of the two contracts was right, as it appeared in the case that A. did not predicate his right to recover upon either of the two written instruments, but upon a verbal promise of guarantyship, and he sets up in his statement of claim that K. was the agent and received a commission for the sale of the property as such agent. Under the statement A. was not entitled to recover, and the judgment rendered in his favor, being upon a verbal promise of guarantyship, was contrary to law. Same will be reversed and a judgment rendered for K.