Thomas v. Dodge

Campbeli J.: The first objection to the recovery by the plaintiffs is made upon the ground that, by omitting to name any person to whom the guaranty of collection was made, the contract failed to comply with the Statute of Frauds, which requires a writing. There are many cases in which a liability may be created against a person for the debt of another, without mentioning the name of any creditor; the guarantor’s proposition being in the nature of an open offer closed by acceptance of it. And Mr. Burge lays it down as a general proposition, that the name of the creditor to be secured may be established by parol. — Burge on Suretyship, 31, citing Bate54 man v. Phillips, 15 East 272. There would seem, to be no good reason for holding such a guaranty as the one before us void, if it were held to come within the statute. • But counsel have inadvertently overlooked the fact that when the owner of negotiable paper sells it, and accompanies the sale by a guaranty, his undertaking being founded on a new consideration enuring to his own benefit, and not to that of the maker of the note, has been held in this state to take the case out of the operation of the statute entirely. This was decided in Jones v. Palmer, 1 Doug. Mich. 379. The same doctrine has been long recognized in New York. — Brown v. Curtiss, 2 Comst. 225. See also a collection of cases in a note to the latter case, in 2 Comst. 588: also Brown on St. of Fr., §165. And Parsons adopts the same views. — 2 Pars. on Cont. 306. The guaranty being one of collection, and ’not of payment, it is claimed that the facts in the case do not establish the inability of the plaintiff to collect of the principal debtor. It can hardly be contended that a guaranty of collection requires suit to be brought in' any particular one of several courts which have jurisdiction. The remedies differ in substance, as well as in form, in various tribunals. One moves more rapidly than another, and sometimes one may reach property beyond the process of another. It would, as it seems to us, be importing a new element into this contract to construe it as requiring a suit in a court of record. A transcript may be filed of a justice’s judgment for less than one hundred dollars, in order to reach real estate, as well as where the judgment exceeds one hundred dollars. And we see no very substantial reason why evidence that a transcript would be of no use for want of property, may not as well be allowed in one case as in the other. It was held in Backus v. Shipherd, 11 Wend. 629, that a transcript • need not be filed where there is no real estate, and that the return of an execution unsatisfied is prima facie evidence of non - collectabillity of a debt within the exclusive [55] jurisdiction of a justice. Whether the return would be prima facie evidence here of inability to collect, we do not decide, as the facts are found, and no such question is raised. But the law does not generally require useless proceedings, and we do not think any thing more than a justice’s execution is necessary, where it appears that nothing can be reached. The case of Beecher v. Baldy, 7 Mich. 488, decides that if a lot actually owned and occupied by a defendant in execution is worth less than fifteen hundred dollars, and is not greater In size than the law requires for exemption, it is exempt from execution without the necessity of any step on the part of the debtor. The defendant in the justice’s judgment having no other real estate but such an exempted homestead, a transcript would have furnished no means for reaching it, and would have been a needless expense. Let it be certified to the Circuit Court for the County of Ingham, that the plaintiff is entitled to judgment upon the facts found. Martin Ch. J., and Manning J., concurred. Cheistiancy J., did not sit in this case.