Hammond v. McHargue

170 Mo. App. 497 | Mo. Ct. App. | 1913

ELLISON, P. J. —

Plaintiff is the assignee of two promissory notes of $1500 each. They were executed, so far as the notes show, by A. R. George, A. B. George and Jesse George, as makers, but in reality the latter was a surety for the two others; and he after-wards died, defendant McHargue being appointed his administrator. Plaintiff then, on the 28th of March, 1911, presented the notes for allowance against the estate of Jesse and they were allowed by the probate court on the 12th of February, 1912. An appeal was taken by the administrator to the circuit court, where judgment was again rendered for plaintiff. The administrator then brought the case here.

The defense is that Jesse George was a surety on the notes and that on the 3rd of April, 1911, under the provision of section 11269, Revised Statutes 1909, he notified plaintiff to bring' suit within thirty days against the makers, which he alleges she failed to do and that in consequence the estate of Jesse was discharged.

It seems that A. R. and A. B. George became insolvent and, separately, on the 23rd of March, 1911, made an assignment for the benefit of their creditors, to John W. Meade, assignee. Restating the foregoing in the order of time, we find A. R. and A. B. George made an assignment March 23, 1911, and the notes were presented to the probate conrt of Mercer county for allowance against the estate of Jesse G-eorge, five days afterwards, March 28, 1911, and six days after that, April 3, 1911, the notice to sne was given by the defendant, administrator of Jesse George; and on July 18, 1911, the notes were presented by plaintiff to the assignee in Daviess county. As the notice to sue' affords the principal contention between the parties,we set it out, as follows:

“You are hereby notified that you hold two notes of $1500 each, dated Aug. 11, 1909, on which are the names as makers of A. R. George, A. B. George and Jesse George.

You are further notified that said Jesse George is dead and that the undersigned is the duly appointed, qualified and acting administrator of his estate; that if Jesse George signed said note he did so as surety for said A. R. George and A. B. George, and that I require you forthwith to commence suit against said prinicpal debtors A. R. George and A. B. George, and other parties liable.

You are also notified that A. R. George and A. B. George have each made an assignment of their property for the benefit of their creditors to John W. Meade of Gallatin, Daviess county, Missouri, who is authorized by law to hear and render judgment for claims of creditors against said A. R. George and A. B. George.”

It has been decided that an administrator of a deceased surety may properly give notice to sue. [O’Howell v. Kirk, 41 Mo. App. 523.] But conceding that to be the law, yet plaintiff insists that the notice was insufficient in that it fails to state definitely that Jesse George was a surety on the note, in that it used the expression: “if Jesse George signed said-note, he did so as surety,” etc. Plaintiff says, and so the law is, that the notice must be clear and explicit. It must amount to a direction or command to sue. [32 Cyc. 104; Savage v. Carleton, 33 Ala. 443; Darby v. Bank, 97 Ala. 643; Bates v. Bank, 7 Ark. 394; Moore v. Peterson, 64 Iowa, 423.] And so it was beld by our Supreme Court in Lockridge v. Upton, 24 Mo. 184, that a notice saying the surety “would not stand good as security any longer,” was insufficient, because it was not a requirement or demand; and that there should be an explicit direction to sue.

Notwithstanding the strict construction which like statutes are thus shown to have received, we think the notice in controversy is not made null by the expression “if Jesse George signed said notes, he did so as surety,” etc. It is the administrator speaking through the notice, and being aware that he had no right or authority to make an admission binding the estate, he put the statement in the form which the law would have given it had he omitted the word “If.” [Leeper v. McGuire, 57 Mo. 360; Melcher v. Derkum, 44 Mo. App. 650.]

Plaintiff suggests that the notice, if otherwise legal, was too late, as she had already begun suit by filing the notes for allowance in the probate court, and that she had a right, under section 1734, Revised Statutes 1909, to proceed against the signers of the notes, singly or jointly, as she thought proper. We think the point not well taken. That right was not intended to permit her to destroy the right of a surety to give the statutory notice to sue.

This vital question remains: Did plaintiff’s failure to sue A. B. and A. R. George within the statutory limit of thirty days, discharge Jesse’s estate as surety? A. B. George was a resident of Mercer county where plaintiff resided, and A. R. George resided in Daviess county. Unless plaintiff is, in some way, relieved by the facts of this case, she should have brought an action within thirty days in Mercer county, had A. B. George served there, and sent a writ to Daviess county for service on A. R. George. [Sisk v. Rosenberger. 82 Mo. 46.] Plaintiff, however, insists that when defendant inserted in the notice the information that A. B. and A. R. George had made an assignment to an assignee who was “authorized by law to hear and render judgment for claims of creditors,” he practically directed plaintiff not to bring suit and nullified the requirement he had just stated — that he “required” suit to be commenced “forthwith.” We do not think this a proper interpretation of the notice as a whole. We think it meant what it said, that suit was to be immediately brought, and then in order that plaintiff might have no excuse for a lack of diligence in collecting the money on a judgment to be rendered, she was informed where that judgment could be allowed and perhaps, at least, in part paid.

But if we adopt plaintiff’s construction that it was a direction to present the notes to the assignee, she failed to do so within the .thirty days* It is no excuse to say that she presented it on the first day fixed by the assignee fór hearing of claims. If the assignee is to be regarded as the tribunal where the notes were to be reduced to judgment, there should have been a compliance with the specific mandate of the statute by filing the notes with him. We only refer to this because mentioned by the parties. We put our decision on the ground that the notice required suit to be brought forthwith and it was not done in thirty days or any other time.

The judgment must be reversed.

All concur.