95 Mich. 501 | Mich. | 1893
This is certiorari to review the action of the circuit court in dissolving an attachment.
Defendant was engaged in the clothing business at Grand Rapids. One Barth, who had been indorsing her paper, died, and May was approached by defendant, to aid her, as indorser, in taking care of that paper as it matured. A written agreement was finally entered into, which recited that, “ Whereas, said first party is desirous of haying second
Between the time of the execution of this contract and the commencement of this suit, plaintiff had indorsed notes aggregating over $3,000, some of which, however, were renewals, and others of which had been paid.
The court finds “ that the plaintiff was induced to enter into said agreement by reason of certain false and fraudulent statements made to him by Harry Newman, • the authorized agent of the said defendant, in regard to the assets and liabilities of the defendant at the time of making said agreement; that the plaintiff had notice and became aware that such statements were false on or about the 11th day of March, and before indorsing the note of that date, and notes subsequently indorsed, hereinafter described;" that at the time of the commencement of this
“Note dated February 29, 1892, due four months from date..................................... - $190’
March 9, four months...........................J. 300 .
March 11, four months____________________________ 400-
June 9, two notes, 60 and 90 days, $250 each______ 500
June 18, 90 days................................... 338
Making a total of..............................$1,728
“ That the notes given of dates June 9 and 18, amounting to $838, were not then due; that the notes of dates-February 29, March 9, and March 11, amounting to $890, had become due and payable, but that neither the defendant nor the plaintiff had paid the same, or any part thereof, to the owner and holder thereof; that the notes of June 9 and 18 were renewals of notes given prior to March 11.” The court further finds, as a matter of law, that at the time of the commencement of this suit the plaintiff was not entitled to an attachment against the defendant.
The allegation of the affidavit for the writ upon which plaintiff relied was that defendant had fraudulently contracted the obligation respecting which the suit is brought.. The court finds this allegation to be sustained by the' proofs, but also finds that plaintiff had notice and became aware that such statements were false when he indorsed the note on March 11, and under the rule laid down in Estlow v. Hanna, 75 Mich. 219, evidently held that that portion of the claim was not affected by the fraud.-
The undisputed facts are that, at the time the agreement was entered into, defendant represented her indebtedness upon notes indorsed by Barth to be $1,000, and her other indebtedness to be about $1,200, making a total of $2,200. Her indebtedness was in fact about $3,300 on notes, indorsed by Barth, independent of the other indebt-.
Some criticism has been made upon the agreement. Plaintiff does not base his right to- an attachment upon the agreement. Creditors are not here complaining. A surety may, by agreement, be given a right of action before the payment of the debt. Brandt, Sur. § 221; Fletcher v. Edson, 8 Vt. 294; Cushing v. Gore, 15 Mass. 69. Defendant agreed that, in case she refused to secure upon demand, the amount for which plaintiff had become liable should be treated as a sum due and payable forthwith. The plaintiff had the right to prescribe the conditions upon which he would incur the responsibility for the defendant's debt, and his assuming that liability was a sufficient consideration for the defendant's engagement with him.
It follows that the order vacating the attachment must be set aside, with costs of both courts to plaintiff.