35 Mich. 350 | Mich. | 1877
Worthington, Meek & Cheeney, a firm of Milwaukee, Wisconsin, on January 24, 1874, made their promissory note for four hundred dollars and interest at ten per cent., on three months’ time, payable to Chubb’s order, and Aldrich, claiming that Chubb negotiated the note to him, and guaranteed its collection, and had become fixed with liability, brought this suit in the superior court of Grand Rapids to enforce the guaranty. He averred the making of the note by Worthington, Meek & Cheeney, its negotiation and endorsement over by Chubb to him, and Chubb’s contract of guaranty. He then averred further that when the note matured he brought his action at law upon it against the makers “ and prosecuted the same with all due diligence to a judgment, and did cause execution to be issued thereon, whieh was returned unsatisfied and unpaid;” “that he expended a large sum of money in prosecuting said suit and in the payment of the costs therein? to wit: the sum of one hundred dollars, and that by reason of the non-payment and non-collection of said judgment, the defendant herein became and was and is liable to pay the plaintiff the amount of said note and interest according to the tenor and effect thereof, and also the amount of said costs and disbursements, and being so liable, did, at the city of Grand Rapids, on, to wit, the third day of January, 1874, promise,” etc.
The declaration was very general. It omitted to set up the time of the guaranty, and there was no allegation showing in what court or when or in what place or country the proceedings against the makers were carried on, or showing-*any of the particulars of such proceedings. There was, however, no demurrer, and defendant simply pleaded the general issue, and the cause was tried before a jury. The note and guaranty having been introduced, the plaintiff offered in evidence a record of proceedings had in tne county court of Milwaukee, in Wisconsin, and purporting to be the record of a suit there by Aldrich against Worthington, Meek & Cheeney, the makers of the note, and apparently in accordance with the mode of procedure which prevails in
“County court, Milwaukee county,
“ Moses V. Aldrich v. George Worthington and William C. Meek impleaded with others.
“ Take notice that upon the papers and proceedings heretofore had in the above entitled action, and upon a certified copy of the order of the district court of the United States for the eastern district of Wisconsin, adjudging the defendants herein, George Worthington and William C. Meek, bankrupts, a copy of which order is herewith served upon you, the said defendants, Worthington and Meek, will, on the 2d day of January, 1875, at the opening of court on *said day, or as soon thereafter as counsel can be heard, apply to the court in which this action is pending, for a stay of proceedings in this action as to them until the question of their discharge from their debts in bankruptcy be determined. Dated December 23, 1874.
“J. F. McMullen,
“Attorney for Defendants Worthington and Meelc.
“To Finches, Lynde & Miller,
“Plaintiff’s Attorneys.”
Succeeding the entry of this notice, appeared a certain proceeding in bankruptcy in the district court of the United
The record of the county court then goes on to say, that on •this motion and showing the stay prayed for, namely, that proceedings against Worthington and Meek in the suit on the mote might be stayed until the question of their discharge from 'their debts in bankruptcy should be determined, was granted by the county court.
Succeeding the entry of this special motion and the evidence adduced to support it, and the allowance of the stay as moved for, the record further set forth an individual answer by Cheeney, on July 8th, 1875, by other counsel, and in which he denied liability. It was entitled as in a case pending against-the three defendants. The next entry set out a trial by jury of the issue raised by Cheeney’s answer and a ^finding for Aldrich against him for four hundred and fifty dollars and seven cents damages, a motion for new trial by Cheeney and a denial of that motion, and judgment in favor of Aldrich against Cheeney alone, for the damages found by the jury, and costs of suit, being fifty-seven dollars and seventy-three cents. A further entry appeared under date of January 10th, 1876, of an order of the court, reciting that judgment had been entered against George Worthington and William C. Meek by mistake, and ordering, on motion of the attorneys for Aldrich, that it should be vacated as against them, and that the record be corrected so as to show judgment entered only against Cheeney. The
The next entry was of execution in an action by Aldrich against Worthington, Meek and Cheeney, hut upon a judgment in such action against Cheeney alone, and a certificate of the sheriff that he could find no property belonging to Cheeney, and therefore returned the writ wholly unsatisfied. The entry purports that the execution was issued January 29th, 1876, and made returnable in sixty days after its receipt, that the return of nulla bona was endorsed on the very day the writ was issued, but that the process was not filed in court until February 16th, 1876.
When the plaintiff offered this documentary proof from Wisconsin in the court below, it was objected to by defendant’s counsel “for the reason that the declaration in this cause did not name the court nor the place where said judgment was obtained, nor whether it was a court of competent jurisdiction, and gave the defendant no information where the said judgment could be found.” The objection was overruled and the evidence was admitted. The defendant’s counsel excepted.
The plaintiff then gave evidence of computation of the amount which the note called for, being five hundred and thirty-five dollars and ninety-seven cents, as testified, and rested the case.
The defendant offered no evidence, and the judge directed *the jury to find for the plaintiff for the computed sum of five hundred and thirty-five dollars and ninety-seven cents. Defendant’s counsel excepted to this direction and insisted there was no evidence to warrant it. The jury found as directed, and judgment was entered on the finding. The cause comes up on a case made, which appears to contain all the evidence, or at least the substance of it, and the points involved arise on the exception taken on the offer of the Wisconsin record, and the exception to the judge’s direction to find for the plaintiff. The first exception was not well based. The objection was confined to the want of particularity and certainty in the declaration. No complaint was made that the document offered was not well authenticated, or
The plaintiff’s counsel say in the brief, that no other question was raised upon the trial, or could be raised by the practice of the court. We think the exception to the court’s positive direction to find for the plaintiff on the evidence given, must have been forgotten. The question presented by this exception is the important one in the cause, *and we do not see how it can be evaded. At the least it was incumbent on the plaintiff to show, as an indispensable preliminary to his right of action against Chubb as guarantor of the collection of the note, that inability to collect of Worthington, Meek & Cheeney by reasonable diligence had been previously ascertained. — Barnes v. Baker, 2 Mich., 377; Thomas v. Dodge, 8 Id., 51; Barman v. Carhartt, 10 Id., 338. That so much is required respecting inability to make the demand out of the principal debtor, as a condition of recovery against the guarantor, is generally, if not universally, conceded; and where there are several such principal debtors, both reason and authority require, that the plaintiff shall make out the condition as to each and all. In regard to the sense and interpretation of the contract, concerning the facts required to satisfy the condition, there is diversity of opinion. The rule differs in different states. In some the undertaking
Where the contract is thus viewed, the plaintiff, in making out compliance with the condition precedent to his right of action against the guarantor, is not bound, unless the declaration requires it, to make it appear that inability to obtain payment of the principal debtor has been established by the prosecution of legal proceedings against him without effect. The legal quality of the obligation deduced, it is said, does not necessarily require it, but may be satisfied by proof of facts showing insolvency, or proof of removal from the country, or the like. On the other hand, it is held in *some states, that the legal sense of the contract is, that the debt will be obtained if the principal debtor is seasonably and diligently prosecuted, and that such prosecution, carried out to a final consummation without success, is a condition precedent to any right of action against the guarantor. And this appears to be the law in New York.— Craig v. Parkis, 40 N.Y., 181, and other New York cases cited in Edwards on B. & N., supra. The same doctrine is conclusively settled in Wisconsin. —Day v. Elmore, 4 Wis., 190; Dyer v. Gibson,. 16 Id., 557; French v. Marsh, 20 Id., 649; and the court expressly ruled, in the last case, that admitting as matter of fact the insolvency of the principal debtor, there could be no right of action upon the guaranty, unless it appeared that a suit had been seasonably commenced against the principal debtor and diligently prosecuted to judgment and execution without avail.
Now the note to which the guaranty in this case applied was made in Wisconsin and was there payable, but whether ■the guaranty of collection was made there or not, does not
The declaration in the case before us was framed on this theory, and it averred in substance that the right to sue upon the guaranty had become perfect by the prosecution of all the principal debtors to judgment and execution without obtaining anything. If alleged that the note not being paid at maturity, the plaintiff brought his action at law upon it against the “makers, and did prosecute the same with all due diligence to a judgment, and did cause execution to be issued thereon, which was returned unsatisfied and unpaid.’*
No other course was alleged to have been pursued to fix the guarantor. No intimation was given of the bankruptcy of either of the principal'debtors, or of discharge in bankruptcy, or of any fact to hinder a prosecution against them to judgment and execution, or of any matter, except as before stated;.
The plaintiff was accordingly bound to maintain this allegation by proof. The point was involved in the right of action. The fact was a material one in the basis of the plaintiff’s case. It was incumbent upon him to show that he had prosecuted Worthington and Meek, as well as Cheeney, to final judgment and execution, without success. But what were the proofs ? He relied wholly for this part of the case upon the papers certified from Wisconsin as a record of the county court of Milwaukee. Without deciding the point, let it be admitted that, as a consequence of the authentication of those papers as together constituting the record, the court below was bound to intend that the proceedings from the federal court, and which were only shown to the Milwaukee court to support a motion for a temporary stay, were in contemplation of law components of the record of the Milwaukee court, and what, as the most that can be ^claimed for it, did the Milwaukee record prove, with the proceedings of the federal court thus engrafted upon it? First, That Aldrich commenced suit against all the makers of the note, or principal debtors, and prosecuted it to final judgment and execution against Cheeney alone, without being able to collect; second, that summons was issued against all such principal debtors on the 30th of April, 1874; that the cause was actually put at issue by all on the 3d of June, and was there suffered to rest for about seven months, or until the 2d of January, 1875, when two of such debtors, Worthington and Meek, moved the court on the evidence afforded by the certified proceedings in bankruptcy to stay proceedings in the cause as to them “ until the question of their discharge from their debts in bankruptcy be determined,” and that the Milwaukee court granted the motion as prayed. At what time after the joining of the issue and before this motion the imputed acts of bankruptcy were committed we are not informed, and it is not important now. But the evidence of prosecution of the principal debtors goes no farther.
As to two of the principal debtors it shows a stopping of
The evidence came short therefore of showing a right of
*As the cause is before us upon the questions of law arising upon the judge’s rulings before the jury, the judgment must be reversed, with costs, and a new trial ordered.