Sanford v. Allen

55 Mass. 473

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1848
• Status: Published

Opinion

By the Court.

We think that the instructions of the judge at the trial in the court of common pleas were correct. Tn the case of Marsh v. Day, 18 Pick. 321, the terms, “ good and collectible,” used in the guaranty of a note, were held to mean “ capable of being collected.” But it does not require the obtaining of a judgment, and an execution returned unsatisfied, as the only evidence that it is incapable of being collected. In the case referred to, suits had been commenced but apparently not prosecuted to judgment. It may be made a condition precedent, if such is the contract of the guarantor; but it was not, we think, so made in this guaranty, and therefore the fact might be proved by other competent evidence.

Exceptions overruled and judgment on the verdict for the plaintiff.