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Inkster v. First National Bank

Robert Inkster v. The First National Bank of Marshall

Inkster v. First Nat'l Bank, 30 Mich. 143 (1874)
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Court
Michigan Supreme Court · State Highest Courts
Decided
July 24, 1874
Judges
Ohristiancy, Other
Citations
30 Mich. 1431874 Mich. LEXIS 154
Headnotes
Promissory notes: Joint makers: Sureties: Principal. A joint maker of a. promissory note who writes after Ms signature to the note the word “surety,11 does not thereby limit or change the nature of his liability to the payee or holder, nor make it any more the duty of the latter to proceed against the other maker at his request, than as if he had signed as a principal maker without adding the word surety. Promissory notes: Joint makers: Surety: Principal: Insolvency. It is no defense to an action at law on such a note against such a signer, that he had requested the plaintiff to proceed and collect the note against the other maker» at a time when the latter was solvent, that the plaintiff had neglected to take any steps towards complying with this request, and that such other maker had since become utterly insolvent. Guaranty. Whether the result would be the same in the case of a mere guaranty : —Quaere? Joint maker: Surety: Principal: Bill in equity by surety to enforce collection. Whether such a maker might not in a court of equity, by giving proper indemnity, call upon the holder to enforce collection against the other joint maker:— Quaere? Sureties: Promissory notes: Payment: Principal. The proper course for sucha signer to protect himself would be to pay the note and take it up, as it was his duty to do, and then proceed, himself, as it was his right to do, against his principal for the amount. Sureties. The case of Pain v. Packard, IS Johns., 17k, is criticised as a clear and unwarranted departure from the common-law doctrine as to the liabilities of sureties.
Summary
Error to Wayne Circuit. Plaintiff in error (who was sued in this case in the Wayne circuit) signed with C. H. White, the following note: “$3,000. Marshall, Mich., Oct. 7, 1871. “Three months after date, for value received, I promise to pay to the order of tbe First National Bank of Marshall, three thousand dollars, at the First National Bank of Marshall, Michigan, with interest at' ten per cent, after date. “ O. H. White, “Robert Inkster, Surety.” The only defense set up by Inkster was, that on tbe 24tb day of February, 1872, be made a request in writing of said plaintiff to proceed and collect the note of said White : that a few months after, he again, in writing, requested the plaintiff to do so, saying that it was for White to pay the same; that, at the time of making the first request, White was solvent, and the amount of the note could have been collected of him; that afterwards White was doing business with the bank; that no suit or other proceedings had ever been commenced by the bank against White to collect the note, and that at the time of the commencement of this suit, White had become utterly insolvent, and no execution could be collected of him. Evidence was introduced tending to establish these facts, and the defendant’s counsel requested the court to charge the jury, that, if they found these facts proved, the defendant was not liable. This charge was refused, and the court charged that the facts stated constituted no defense to the action. To this, exception was taken, and this constituted the only question in the case.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Ohristiancy

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■Ohristiancy, J.

Without expressing any opinion upon the ease of a mere .guaranty, and without undertaking to decide whether the plaintiff in error might or might not, in a court of equity, by giving proper indemnity, have called upon the bank to proceed against White for the collection of the note; and *148 treating the question now before us as one of common law only (which it is), we think the circuit court was right in holding that the facts relied upon by the defendant below constituted no defense to the action.

As between him and the bank, so far as the right of action was concerned, he was a maker of the note, and a principal. As between him and White, he was but a surety; and though the bank was apprised of this by his signature upon the face of the note as surety, this did not, in reference to the question here involved, change the nature of his liability to the payee or holder, or make it any more the duty of the latter'to proceed against White, at his request, than if he had signed as a principal maker without adding to his signature the word “ surety.”

His liability to the holder was absolute and not conditional, and his duty was to pay the note; and, though as between himself and White he was but a surety, he cannot complain of auy hardship because the holder would not, at his request, proceed to bring suit against the principal, as it was in his own power, at any moment after default, to pay the note, take it up, and proceed himself against his principal for the amount. This was the duty which his contract imposed upon him by the common law, and such was the remedy which the common law gave him upon the performance of that duty. Such we understand to be the well settled general rule as to the obligation and rights of sureties, and we see nothing in this case to take it out of the general rule.

The case of Pain v. Packard, 13 Johns., 174 (which has been followed in New York, not without some vigorous protests, and to some extent in some other states), was, we think, a clear departure from the common law; and we find nothing in the English decisions to warrant the qualifications of a surety’s liabilities there recognized.

The judgment of the circuit court must be affirmed, with costs.

The other Justices concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1879–1880: 21881–1882: 21883–1884: 11885–1886: 11889–1890: 11901–1902: 11907–1908: 11913–1914: 11915–1916: 118792026peak 1879 · 2

Relies on it most ⓘ

  1. National Bank of Poteau v. Lowrey1916 OK 470, 157 P. 103
  2. Randall v. Simmons67 P. 513 (Or. 1902)
  3. Johnson v. Charles D. Norton Co.159 F. 361 (6th Cir. 1908)
  4. Canadian Bank of Commerce v. Coumbe11 N.W. 196 (Mich. 1882)
  5. Findley v. Hill8 Or. 247 (1880)
  6. Smith v. Freyler4 Mont. 489 (1882)

Most recent

  1. National Bank of Poteau v. Lowrey1916 OK 470, 157 P. 103
  2. Sims v. Everett168 S.W. 559 (Ark. 1914)
  3. Johnson v. Charles D. Norton Co.159 F. 361 (6th Cir. 1908)
  4. Randall v. Simmons67 P. 513 (Or. 1902)
  5. Long v. Kaiser46 N.W. 19 (Mich. 1890)
  6. Fourth National Bank v. Olney29 N.W. 513 (Mich. 1886)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Pain v. Packard, 13 Johns. 174 (N.Y. Sup. Ct. 1816) 60

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