Dodge v. Stanton

Christiancy J.: The 'three promissoiy notes of fPreston received by Dodge as part of the sum of four hundred dollars which Stanton was to pay for the mortgaged premises, were not received in absolute payment. The written agreement, in pursuance of which they were received, expressly pro. vides that, “if the foregoing securities’’ [of which the notes were a part] “ are not collected, then the said party of the second part” [said Stanton] “is to make up to the said Dodge the deficiency.” It is very clear, therefore, that the notes] were received as conditional payment only, to apply in payment, if cok lected, or, in other words, if paid. This had the effect to extend the payment of so much of the four hundred dollars to be paid by Stanton till, the notes respectively became due: but, if not paid at maturity, Dodge was [413] under no obligation to bring suit upon them, but might at once resort to Stanton for the amount of each note not paid when due. If Stanton wished to have suit brought upon the notes or either of them, he might at any time have paid to Dodge the amount of the note or notes dishonored, and obtained the same as his own, and then have taken his own course for their collection. Stanton had not indorsed ¡.the notes, nor was there any indorser or guarantor to be held liable upon them. The only party hable upon the notes was the maker. His liability was fixed and unconditional; and Dodge had therefore no duties to perform by way of demand and notice to hold him to his liability; Had the notes been indorsed or guarantied (in such a manner as to require demand upon the maker and notice of non-payment), it would have become the duty of Dodge to take all the steps necessary to hold the indorser or guarantor liable; and if he had neglected this, he might have made the paper his own, and thereby released Stanton from his liability to pay the amount. Such, we think, is the legal effect of the agreement upon which the notes were received by Dodge; and the subsequent acts of the parties after default in payment of the notes, show that it was thus understood by both. The notes, with another which had never been turned out to Dodge, were, at .the instance of Stanton, put in suit, and a single judgment obtained upon all of them in the name of Wood. Stanton, after this, when called on for payment, said he thought he could collect the amount of Preston, and wished to be allowed to try before he should pay Dodge: and if he did not succeed, he would pay the amount: witness thinks there was some time fixed for this purpose, but can not state it. Dodge assented to the delay; and directions . were given to the justice to allow Stanton to control the judgment. We think that the Circuit Court came to the proper [414] conclusion upon tbe evidence, and tbe judgment must be affirmed. As tbe costs are in the discretion of tbe Court (Comp. L. § 2940), and as we can see no reasonable ground for resisting tbe claim by bringing tbe cause to this Court, plaintiff must recover his costs here. Campkeul J.: Whether Stanton’s liability depended on non-payment or failure to collect the notes described in the case, it is, established by the facts; and the judgment obtained on the notes remains unsatisfied after execution duly issued on it: — Thomas v. Dodge, 8 Mich. 51. I therefore concur in affirming the judgment. Martin Ch. J. also concurred in the result-. Manning J. was absent when the case was decided.