177 Ky. 197 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming.
Maxell 5, 1913, S. Gr. Steele, principal, and O. Gr. Steele, and the appellee, H. M. Whittaker, as his sureties, executed to the appellant, Charles A. Baker, their promissory note for $2,000.00, due in twelve months, with interest from date. On January 3, 1916, Baker brought suit upon this note in the Laurel circuit court, seeking to recover judgment against all the obligors. At the appearance term following the institution of the action the appellee, Whittaker, filed a separate answer to the peti
It is insisted for appellant that the trial court erred in overruling the demurrer filed by him to the answer of the appellee; and in support of this contention it is argued by his counsel that the answer presents no defense: (1) Because it is alleged in the answer that the written notice to sue upon the note received by appellant from appellee was given before instead of after the maturity of the note. (2) That the allegations of the answer as to the contents of the notice show it to have been too uncertain and vague to meet the requirements of the law. Our reading of the answer does not permit us to sustain either of these contentions. Its averment with respect to the notice is that it was given “on or about the 15th day of March, 1914, and on or before the note sued on became due and payable.” If the notice was given March 15, 1914, as alleged, it was after the maturity of the note, which became due March 5, 1914. The remainder of the allegation quoted, literally interpreted, simply means that he also gave the notice on or before the maturity 'of the note. In other words, the
Obviously, these objections to the answer are without merit; moreover, the fact that the notice was given, or at any rate, written and mailed, on March 15, 1914, ten days after the maturity of the-note, was testified to by appellee and his attorney, B. G-. Reams, and not denied by any other witness.
We regard as equally untenable appellant’s contention, as to the alleged indefinite terms of the notice. As shown by the evidence, the language of the notice was: “Mr. C. A. Baker — I hereby notify you to collect the S. Gf. Steele note that I am on while he is worth it, as I an? tired of being drug around.” Quotations are made by appellant’s counsel from 32 Cyc., p. 104, to the effect that the “notice must amount to a command. It is not sufficient to express a hope, a wish or a desire; nor will it be sufficient compliance for a surety to give a hint, to make a request, to urge, to suggest, to advise, etc. ’ ’
It will be observed that the language of the notice given in this case, in its demand that appellant take immediate steps to collect the note in question of the principal is as importunate as if it had-said, “sue upon the note at once.” It is not a mere request that suit be
It should here be remarked that appellant understood that the notice given him by appellee was a command to him to sue. It is true he testified that he did not receive the notice, yet three witnesses, appellee, his son, Lee Whittaker, and Si Jones, all testified that appellant in their presence admitted to appellee that he had received the notice, and that in making the admission, he said to appellee, “Henry, I got your notice, but that man (S. Gr. Steele, the principal in the note) is as honest as he can be, and I aim to let him keep the money. ’ ’
Yet another contention made by appellant is that the proof failed to show the receipt of the notice by appellant. There is little ground for this contention. In addition to the admission of appellant that the notice was received by him, the testimony of appellee and of his attorney, Reams, shows that it was written by the latter at the request of appellee on March 15,1914, and was then mailed to appellant. In Benge’s Administrator v. Eversole, supra, we held, in substance, that notwithstanding the 'requirement of the statute that the notice must be served on the payee of the note in person, where it is shown that it was properly mailed and addressed to him at his postoffice, although such mailing of it did not create a legal presumption of its delivery, the fact that it was so mailed is proper testimony to be considered, together with other evidence, in determining whether it was received. In this case a mere presumption of the delivery of the notice is not all that is relied upon to show its delivery, for three witnesses testified that its deliv
Appellant also complains of error upon the part of the trial court in the admission of evidence. The evidence in question consists of certain statements from appellee made to his attorney, Reams, when the latter advised him as to the manner of giving the notice and prepared it for him; the statement being to the effect, that appellee told Reams he had paid out as surety for people so much money that it had about broken him up and ruined him. This conversation was related both by appellee and Reams in the hearing of the jury. The conversation was clearly incompetent, and should have been excluded by the court. Appellee’s relation of it was not, however, objected to by appellant, but such objection was made to the conversation when related by the attorney, Reams, in giving his testimony, and the objection overruled. If, in addition to making the objection to what Reams said about this conversation, the appellant had moved the court to exclude what had been previously said on the same subject by appellee, and the court had overruled both the objection and motion, 'we would have felt compelled to say that the prejudicial character of the evidence in question would require the reversal of the judgment ; but this course was not pursued by appellant, and as he allowed the testimony of appellee respecting the evidence in question to go unchallenged, we must take it for granted that neither he nor his counsel regarded it as prejudicial. In.view of which, we are at a loss to understand why he should have regarded his rights prejudiced by the subsequent relation of the same. conversation by Reams. The exclusion of the testimony of Reams on this point, if the court had complied with appellant’s request therefor, would not have removed the hurtful
The instructions given by the court aptly and, with commendable brevity, gave the jury all the law applicable to the issues of fact in the case. Indeed, this is recognized by appellant’s counsel, who fails to offer any criticism of the instructions.
In our opinion, appellant’s contentions already passed on the the only ones material to be considered, and as the record shows no cause for disturbing the verdict of the jury, the judgment is affirmed.