D. M. Osborne & Co. v. Thompson
Supreme Court of Minnesota
Appeal by plaintiff (a corporation) from a judgment of the district court for Nobles county, where the action was tried by Perkins, .J., a jury being waived. The action was on the following guaranty indorsed on the note of one Chaney: “I hereby guarantee the collection of the within note, waiving demand, notice, and protest.
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Appeal by plaintiff (a corporation) from a judgment of the district court for Nobles county, where the action was tried by Perkins, .J., a jury being waived. The action was on the following guaranty indorsed on the note of one Chaney: “I hereby guarantee the collection of the within note, waiving demand, notice, and protest. Peter-Thompson. ” There was no avernient or proof of any attempt to enforce payment by legal proceedings against the maker, and the court found that it was not proved that the maker had been since the maturity of the note so utterly insolvent as to render such…
1Opinion of the CourtMitchell, J.
1. The plaintiffs never having attempted to collect this., note from the maker by due course of law, it was incumbent on them,, in order to recover from defendant, (who guaranteed collection,) to, prove that the maker was, at the maturity of the note, and still continued, so utterly insolvent that an action against him would be fruitless. Brackett v. Rich, 23 Minn. 485. We have examined the evidence on this point, and are of opinion that it supports the finding of the court that the maker had not been, from the maturity of the note, up to the commencement of this action, so utterly insolvent…
2Cases cited1 opinion
- Brackett v. RichSupreme Court of Minnesota · 1877
3Cited by5 opinions
- Fritz v. Western Union Telegraph Co.Utah Supreme Court · 1903
- Georgia Casualty Co. v. Dixie Trust & Security Co.Court of Appeals of Georgia · 1919
- Shea v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.Supreme Court of Minnesota · 1895
- Northwest Thresher Co. v. DahltorpSupreme Court of Minnesota · 1908
- Beitler v. RudkinSupreme Court of Connecticut · 1926