National Lead Co. v. Montpelier Hardware Co.

73 Vt. 119 | Vt. | 1901

Taft, C. J.

The plaintiff seeks to recover the amount due upon a promissory note signed by the Montpelier Hardware Co. the defendants D. D. Fuller, H. L,. Dean, and one Charles H. Fuller; the latter had been discharged by the court of insolvency. The principal upon the note, the Hardware Co., is in insolvency and two dividends amounting to 70 per cent, upon the dollar have been paid by the assignee. No claim is made against C. H. Fuller. The plaintiff is entitled to a judgment against the defendants D. L. Fuller and Dean. The defendant D. D- Fuller claimed on the trial below that the plaintiff was not entitled to judgment in this suit for that it was bound to exhaust its remedy against the principal of the note and that there was a reasonable probability of another dividend being realized from the uncollected assets of the Hardware Co., and that it could not proceed against the defendant D. L. Fuller until the insolvent estate was fully settled. This position is not tenable. The plaintiff has the right to collect the note in any legal way from any of the signers. The presentation of the note against the estate of the Hardware Co. did not operate to discharge the other signers of the note. The note being a joint one, the plaintiff could not maintain an action against the signers severally and they were all summoned as defendants. No judgment could be rendered against Charles H. Fuller as he had been discharged from the claim by the court of insolvency. Judgment was rendered against the two defendants, D. T. Fuller and Dean. If it was error not to include theHardware Co. in the judgment as debtors, that question is not before us as no exception was taken upon the ground that the Hardware Co. were not included in the judgment.

The only questions made below by D. D. Fuller were those above-mentioned, viz: — that the plaintiff was bound to exhaust its remedy against the Hardwaré Company, and could not proceed against him until the estate of the Hardware Company was settled, and that the presentation of the note against the estate of the Hardware Company discharged the defendants D. L. Fuller and Dean. The court below was correct in its rulings on these two questions.

No discharge is granted a corporation by the insolvent court and there is no provision for staying judgment against one as there is-against an individual, until the question of a discharge is settled. Whether judgment against the Hardware Company could properly have been rendered we do not decide as the question is not before us.

There was no error in rendering judgment against D. L. Puller and Dean and the same is affirmed.