Goetchius v. Calkins

9 N.W. 436, 46 Mich. 328, 1881 Mich. LEXIS 587

• Court: Michigan Supreme Court
• Decided: June 22, 1881
• Status: Published

Opinion

Campbell, J.

Goetchius sues Calkins to recover contribution for his alleged excess of payment on a joint note executed by the two to William Park, on the 2d of February, 1878. The consideration of this note was the release ■and extension of time of a former note which Goetchius and •one Brown had formerly executed to Calkins, on which Goetchius was surety and Brown principal. Calkins was the nominal payee and held it in trust for other parties; and it had been transferred to Park to raise money for their benefit.

We think there is no foundation for any such claim. Goetchius was the debtor of Calkins, and was bound to pay him or his indorsee the whole of the old note, having recourse only to Brown for re-imbursement. Calkins owed him nothing, and there is no consideration whatever which would make it equitable to compel him to assume half of a debt which would have been due to himself in case he and not Goetchius had paid Park. He, in other words, is on the present note as to Goetchius as he was on the old note which he indorsed, not an original co-debtor, but a surety for Goetchius as principal debtor. When Goetchius paid the note he paid no more than as between the two he was bound to pay.

The judgment must be affirmed with costs.

The other Justices concurred.