179 Iowa 1178 | Iowa | 1917
I. Limiting ourselves to the ruling in sustaining the motion to direct verdict, we have nothing to decide but the question whether certain allegations of the answer were so conclusively proven as that there was no question to submit to a jury. One statute works a release if the creditor fails or refuses, within 10 days after service of such notice as was here served, to sue oh the claim, or to permit the surety to commence an action in the name of such creditor at the cost of the surety. Another statute covers refusal or neglect to furnish the surety with a true copy of the contract or other .writing therefor, or to give him the use of the original when requisite in such action.
III. But the plaintiff was not required to bring suit if it permitted the surety to bring suit in the name of the creditor at the cost of the surety. Did the state of the evidence justify the trial court in taking from the jury whether or not such permission had been given? The administratrix testified that the cashier of plaintiff's bank read the notice when she brought it to him, and asked her when she wanted him “to do that,” and she told him, “Right away;” that thereupon he said nothing. She then told him she hated to do that, but that he (the cashier) would have to'do something,
“I .understood that I must sue or permit her to sue, and knew that it had to be done at once, within 10 days. Q. When did you tell her to sue? A. Then. Bight when I read the copy.”
4-a
“If the creditor refuses or neglects to bring an action
The answer seeks relief upon the ground that plaintiff failed to bring suit upon the note within 10 days from the service of said notice, “and'failed to deliver to this defendant a copy of said promissory note, or of the original for the purpose of bringing suit thereon.” We think a fair construction of this statute is that, since the release of the surety in a sense works a forfeiture, the statute should not be construed to make forfeiture easy. Its intent is that there shall be no release for failure to deliver the copy until after a demand to deliver it has been made, and that it is sufficient if it is delivered within 10 days after such demand.
4-b
For the reasons pointed out, the order below is — Reversed.