After this assignment J. A. Fay & Co. caused attachments to be issued in New York and Chicago, and some of the property of James Jenks & Co. there situate was taken under the writs. It also appears that after the assignment J. A. Fay & Co. commenced suit in the Wayne circuit court upon the $12,000 note against James Jenks & Co. and the indorsers, Frederic W. Swift, James Jenks, and George A. Jenks, to which action defendants appeared, and, under their plea of the general issue, claimed to recoup damages by reason of a breach of the contract above set forth, in the plaintiff's therein failing and refusing to furnish the goods and machinery to be sold on commission as provided in the contract. Before the present claim came on for hearing, the plaintiff in the suit on the note discontinued as to James Jenks & Co., and proceeded to trial against the indorsers, and obtained judgment therein to the full amount of the note and interest. The defense to the present claim is— 1. That there was a violation of the contract above set forth by J. A. Fay & Co. 2. That judgment having been taken against the indorsers on the $12,000 note, that amount should have been deducted from the amount of the claim presented here. 3. That the value of the property attached in New York and Chicago should have been ascertained in this proceeding, and deducted from the claim From an examination of the contract, we do not think the defendant here is in a position to set up some of the breaches, as claimed. The contract provides that "Said James Jenks & Co. is to report on the tenth of each month the sales for the previous month, and give its notes, due in four months, bearing date with said report, for the amount of such monthly sales, without interest; and, in case said James Jenks & Co. shall at any time desire a renewal of any of said notes, or of the four notes first mentioned herein, said James Jenks & Co. may renew the same for the period of four months, with six per cent. interest, by giving thereon the indorsements of said James Jenks, George A. Jenks, and Frederic W. Swift, who are the stockholders of said James Jenks & Co. A second renewal of any note shall only be allowed by special arrangement with Fay & Co.; and it is further agreed that, in case of failure to pay any renewed note at maturity, said J. A. Fay & Co. shall have the option to declare all indebtedness of said James Jenks & Co. to it due and payable forthwith, including said note for $12,000, and also to declare said agency at an end." When the stockholders, therefore, declined to indorse the renewal notes, the claimant, by the terms of this contract, had the right to declare it at an end, and its refusal to furnish the commission goods, and its action in removing the commission goods then on hand, was justified by the plain terms of the contract. Another claim is, however, made by the defendant, which has some force, and which raises issues that should have gone to the jury. The defendant was to be the sole agent of Fay & Co. in Michigan for the exclusive sale of its goods, which were to be furnished and supplied when required by defendant. Some evidence was given on the hearing that Fay & Co. permitted sales to be made by other of its agents residing without the State within. this territory. This is denied by claimant, but that question we can not settle upon this record. Some testimony was given tending in a measure to show it, and which must be taken here as true, the court having directed the verdict in favor of claimant. The questions raised under the second claim need but passing notice. There is no dispute but that this note was given for an indebtedness of James Jenks & Co. existing at and before the time of the execution of the contract. It has never been paid, and whether there was a breach of the contract or not could not affect this note in the manner claimed. If the defendant sustained damages by reason of sales being made by other agents within its territory, these damages would go to the reduction of the damages of claimant as a whole, and would not specifically affect the note. The fact, also, that a discontinuance was entered as to James Jenks & Co. after issue in the suit brought on the note, and judgment taken against the indorsers, could not affect the questions here. Such controversies can only be settled in the suit on the note, and not here. If the judgment which is or may be obtained on the note is paid, it would of course reduce the claimant's demand here. We think the court was in error in not submitting to the jury also the question of the value of the goods taken in attachment in New York and Chicago. It is evident that the claimant, through its officers Doane, and Lyon, had full knowledge of the assignment of defendant; and, whatever the value of the property taken under the attachment, it should have been applied in reduction of the claimant's demand. The verdict and judgment must be set aside, with costs, and new trial ordered. The other Justices concurred J. A. FAY & Co. (A CORPORATION) V. JAMES JENKS & [See ante,-.] Promissory notes-Indorsers-Joint obligors-Discontinuance. 1. Where a note is indorsed prior to its delivery, and the indorsers are not the payees, the contract is in form joint against the makers and indorsers. Weatherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150; Herbage v. McEntee, 40 Id. 337; Sibley v. Bank, 41 Id. 196; Moynahan v. Hanaford, 42 Id. 329. 2. When an obligation is joint as well as several, all must be proceeded against jointly, or each severally, subject to certain exceptions, as where one is an infant, or has been discharged in bankruptcy. 3. Where a suit is brought against the maker and the indorsers of a promissory note, which indorsements were made prior to the delivery of the note, a discontinuance as to the maker operates as a discontinuance against all of the defendants. Winslow v. Herrick, 9 Mich. 380; Anderson v. Robinson, 38 Id. 407; Munn v. Haynes, 46 Id. 140; Post v. Shafer, 63 Id. 85. Error to Wayne. (Brevoort, J.) Argued November 13, 1889. Decided December 28, 1889. Assumpsit. Defendants bring error. Reversed. The facts are stated in the opinion. Bowen, Douglas & Whiting, for appellants Jenks. George W. Radford, for appellant Swift. Moore & Canfield and William H. Wells, for plaintiff. CHAMPLIN, J. The plaintiff commenced suit against the above-named defendants and the James Jenks & Co. corporation, and declared against them jointly upon the common counts in assumpsit, serving with the declaration a notice that on the trial they would give in evidence under the money counts one certain promissory note, a copy of which is as follows, namely: "$12,000.00. DETROIT, October 19, 1886. "On or before two years after date James Jenks & Co., incorporated, promise to pay J. A. Fay & Co. twelve thousand dollars, at its office in Cincinnati, Ohio; said maker having the privilege of paying any sum at any time thereon, value received, with 6 per cent. interest per annum. "Due on or before Oct. 19-22-88. "JAMES JENKS & Co., Incorporated. "By JAMES JENKS, Prest." Indorsements: "JAMES JENKS. "F. W. SWIFT. "Pay cashier Citizens' National Bank, Cincinnati, Ohio, or order. For collection. J. A. FAY & Co." At the trial the plaintiff discontinued the suit voluntarily against James Jenks & Co., incorporated, and filed an amended declaration against James Jenks, George A. Jenks, and Frederic W. Swift jointly. At the conclusion of the trial the court directed a verdict for the plaintiff. The court erred. It is unnecessary to determine now whether the contract is several as well as joint. As held in this State, the contract is in form joint against the maker and indorsers, where the indorsers are not the payees, and the note was indorsed before the instrument was delivered, as was the case here. Weatherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150; Herbage v. McEntee, 40 Id. 337; Sibley v. Bank, 41 Id. 196 (1 N. W. Rep. 930); Moynahan v. Hanaford, 42 Id. 329 (3 N. W. Rep. 944). The rule is elementary that, when an obligation is joint as well as several, all must be proceeded against jointly, or each severally. There is no authority for suing three out of four joint makers. There are exceptions to the rule requiring the proceeding to be against all jointly, as where one is an infant, or one has been discharged in bankruptcy; but this case is not within the exceptions. The discontinuance against James Jenks & Co. operated as a discontinuance against all of the defendants, and the case should have ended there. Anderson v. Robinson, 38 Mich. 407; Munn v. Haynes, 46 |