Kalmbach v. Foote, 79 Mich. 236

Kalmbach v. Foote

79 Mich. 236 | Mich. | 1890

Campbell, J.

This suit was brought to recover back money paid without consideration.

It appears that plaintiff had been a surety on a guardian’s bond for Noah Tooley, guardian of Anna Tooley, and judgment was obtained against them on the guardian’s bond, which was reversed by this Court, February *237IS, 1889.1 Before the case was removed to this Court, defendant, who seems to have had or assumed control of the judgment, came with the sheriff to plaintiff’s store on November 14, 1888, and told him he was going to levy on Tooley’s property, which is shown to have been ample, and told him, unless he fixed the matter with Friedrich, he would have to levy on plaintiff’s store. The Friedrich matter was the price of a piano charged to defendant personally by Friedrich, which seems to have been used by Miss Tooley, but which was sold to defendant absolutely. After some parley, plaintiff went with defendant to Friedrich, and assumed and paid the debt. At the same time he gave defendant a note for the remainder of the amount of the judgment and costs, payable to defendant’s order individually. This note was discounted for defendant at bank, and paid by plaintiff.

The only defense much relied on at the argument was that plaintiff’s resort should have been to Miss Tooley. But we do not think that, under the circumstances, this was necessary; and it must have been difficult for plaintiff to follow out the fund, if she ever got it, which is not shown. The money paid by plaintiff was in part on defendant’s individual debt,' on which Miss Tooley was not shown to be liable, whatever claim defendant might have for re-imbursement. The note was paid to defendant’s individual order. It was not justifiable to resort to threats of levy on a surety’s property when no one doubted the complete ability of the principal to meet an execution. But, as the judgment was reversed, the money was recoverable back at any rate; and we can see no reason why, where it went to the individual purposes of defendant, he should not make it good. The purchase of the *238piano could not have been in his professional character, as attorney for the judge of probate, or for Miss Tooley; and the discounting of the paper did not profess to be for any such purpose, or to have been at Miss Tooley’s request, or for her benefit. Defendant got the ' money for both purposes himself, and upon this record there is no reason shown why he should not refund' it.

Judgment should be reversed, with costs, and a new trial granted.

The other Justices concurred.

See Perkins v. Tooley, 74 Mich. 220.