Schermerhorn v. Conner
Michigan Supreme Court
Error to St. Joseph. Assumpsit by Schermerhorn against Conner on a promissory note signed by Frank and Nathan Hatehell, and indorsed by Conner with a guaranty of payment in these words: “When all legal means to collect the within note against Frank and Nathan Hatehell shall have been used, if said note cannot be collected then, I agree to make the sum good to J. W. Schermerhorn. M. W. Conner.” Defendant recovered and plaintiff brings error.
1Opinion of the CourtMarston, J.
Under the clear and explicit terms of the undertaking of defendant, upon which this action was brought, he could only be held liable when all legal means to collect the note against the Hatehells had been used. This required the plaintiff to show that he had fully exhausted his remedy at law by the recovery of a judgment, the issue and return, at the expiration of the time fixed for a return, of an execution unsatisfied in whole or in part, and where permitted, the filing of a *376transcript in the circuit court, and the issue and return of an execution therefrom. An offer to prove that such…
2Cited by5 opinions
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