29 Mich. 395 | Mich. | 1874
The decree which was rendered in the court below in this ease appears to be correct.
The creditors of Olson & Jones were entitled to a common relief under the contract between Olson and Morrison,, and might very properly unite in a suit to obtain it. Olson was also a proper complainant, as being interested in the payment of the debts, and also as being a party to the contract. Jones might'have been made a party also, but there seems to be no sufficient reason requiring it.
It was not necessary for the creditors to obtain judgments before filing the bill. Morrison had purchased property which had belonged to the partnership of Olson & Jones, and which had constituted a fund for the satisfaction of their demands; and having agreed in writing to assume and pay these as a part of the price in making his purchase, he had thereby recognized their equitable lien. And there is no more reason for requiring the several creditors to put their demands in judgment at law, than there
• Nor should the creditors be required to exhaust their remedy against Olson. & Jones before having relief from Morrison. The latter, by assuming the debts, has taken the place of a party primarily responsible, and is precluded from insisting that parties whom he has undertaken to relieve from payment shall be pursued. The creditors might have elected to proceed against Olson & Jones, but they were also at liberty to do what they have done, and join Olson in pursuing the remedy on Morrison’s contract. And though Olson had a remedy against Morrison on his contract by suit at law, yet the remedy in equity was so much more complete, embracing, as it did, what might otherwise have been numerous suits with a possible necessity of resorting to equity afterwards, that his right to elect it seems unquestionable.
The decree must be affirmed, with costs.
