A. M. McPhail Piano Co. v. Meservey

168 Mass. 209 | Mass. | 1897

Lathrop, J.

The defendant contends that at the time the action was brought no liability on his part as surety had arisen. By the condition of the bond in suit it was to become void only in case the principal on the bond should, within nine months after notifying the plaintiff, or the plaintiff notifying the principal, of a desire to close the account between them, pay the balance due the plaintiff, or any notes given in settlement of the account. There is nothing in the condition of the bond in regard to notifying the surety of a desire to close the account. The suit was brought more than nine months after the plaintiff notified the principal of a desire to close the account; and so far as the terms of the bond are concerned, there is no defence to the action.

The defendant offered to prove that, at the time he sent the bond with his signature, he wrote a letter to the .plaintiff in which he said, “ I want you to notify me of all purchases made and the conditions of the same, so that I may know exactly my liability ”; that on the next day the plaintiff answered this by writing, “We will keep you posted as to what is done, and believe that we need not trouble you in the least by the business that we shall do ”; that subsequently the bond was returned to the defendant to have the date written in ; and that the defendant was afterwardsinotified of all the business transacted between the plaintiff and the principal, but was not notified of the plaintiff’s desire to close the account nine months before suit was brought.

The short answer to this contention is, that, even if the letters, being written before the bond was finally delivered, could be admissible in evidence, the defendant merely requested the plaintiff to notify him of all purchases made and the conditions of the same, and this request was complied with. No further request was made.

The ruling of the court below was therefore right; and the order- must be,

Exceptions overruled.