36 Minn. 528 | Minn. | 1887
1. The plaintiffs never having attempted to collect this., note from the maker by due course of law, it was incumbent on them,, in order to recover from defendant, (who guaranteed collection,) to, prove that the maker was, at the maturity of the note, and still continued, so utterly insolvent that an action against him would be fruitless. Brackett v. Rich, 23 Minn. 485. We have examined the evidence on this point, and are of opinion that it supports the finding of the court that the maker had not been, from the maturity of the note, up to the commencement of this action, so utterly insolvent that an, action against him on the note would have been fruitless, if prosecuted with due and reasonable diligence.
2. Conceding that the question to witness Bennett, referred to in, first assignment of error, should have been whether the amount could have been collected of the maker by legal process, defendant was not.
3. Even if the court erred in overruling plaintiffs’ objection to the question to the witness Chaney, referred to in the second assignment of error, it was error without prejudice, inasmuch as the answer of the witness could not have possibly harmed the plaintiffs.
Judgment affirmed.