Lockridge v. Upton

24 Mo. 184 | Mo. | 1857

LEONARD, Judge,

delivered the opinion of the court.

The notice was that defendant “ would not stand good as security any longer,” and we think the Circuit Court was right in declaring it to be insufficient as a requisition to sue within the meaning of our statute. In Greenawault against Kreider, (3 Barr. 265,) the security, after referring to a note held by the party against a third person, in which the party giving the notice and another were sued to be bail, formally notified the payee that “ he would no longer be considered bail,” and requested him 11 to take another bond from the principal or payment,” and this was held to be an insufficient requisition to sue, and the remarks of the court in that case are marked with much good sense. The request “ to take payment,” it is said, might perhaps be taken as a bint to sue, but a hint is not enough. There ought to be an explicit direction to sue, that there may be no misapprehension of the meaning. It is as easy to speak out plainly as mysteriously, and there would be no certainty in the rule if it left the courts to grope for the meaning of the party among ambiguous words. Cases will arise in which it would be difficult to determine, and in the end there would be no rule at all. Nor would the creditor know how to keep himself safe unless he were to fly at the principal 'on the first intimation of the surety’s impatience. In Parrish v. Gray, (1 Humph. 88,) “I wish you to' collect the debt of Poison, wherein I am security,” was held to be insufficient as a notice to sue, within the meaning of the Tennessee statute upon the subject. No set form of words is necessary. The notices are usually drawn up by the parties themselves, without the aid of counsel, and nothing more ought to be required than a substantial compliance with the statute. But then it is to be .observed that they are given to as well as by plain men, and that the former act upon them without the aid of counsel to guess out their' meaning ; and we must take care that the surety is required to express his meaning so unequivocally that one unlearned in the law may understand, without difficulty, what is demanded of him. What would be a sufficient hint to a lawyer would perhaps fail altogether in suggesting to one unlearned in the law that he was required forthwith to collect his debt by suit. The judgment must be affirmed.