64 Iowa 423 | Iowa | 1884
Section 2108 of the Code provides that “when a person bound as surety for another for the payment of money, or the performance of any other contract in writing, apprehends that his principal is about to become insolvent, * * * * he may, by -writing, require the creditor to sue upon the same, or permit the surety to commence such suit in such creditor’s name, and at the surety’s cost.” Section 2109 provides that “if the creditor refuse to bring suit, or neglect so to do for ten days after the request, and does not permit the surety so to do, and furnish him with a true copy of the contract or other writing therefor, and enable him to have the use of the original when requisite in such suit, the surety shall be discharged.” Section 2110 provides that “ when the surety commences suit he shall file his undertaking to pay such costs as may be adjudged against the creditor, and the suit shall be brought against all the obligors, but those joining in the request to' the creditor shall make no defense to the action, but may be heard on the assessment of damages.” The notice given by Harvey, and relied upon by him, after setting out his apprehension, concludes in these words: “ Therefore, I again notify and request you to begin suit against W. H. Peterson for the collection of the amount due, for which I am his surety, or permit me to begin suit against him in your name at my cost.”
■ The question presented is as to whether this is a sufficient notice under the statute. In determining this question, we have to observe,' first, that the statute is in derogation of the common law. Whoever sets up a discharge thereunder should
Looking at the notice above set out, it will be seen that the plaintiffs were not notified in terms to sue upon the contract, but merely to sue Peterson, or permit the defendant, Harvey, to sue him in their name. The plaintiffs were entitled to the alternative of suing both Peterson and Harvey, or having them both sued by Harvey.' It is manifest, upon looking at the notice, that Harvey did not contemplate such suit, and, especially, if the suit was to be brought by himself. He should, we think, have brought himself within the jn-ovision, by notifying the plaintiffs to sue on the contract, or to permit him to do so; the fair meaning of which would have been to sue, or permit suit, for all the rights which the plaintiffs had under the contract. Not having brought himself within the provision, as we view it, the plaintiffs were not warned that a discharge would be claimed in case of a refusal, and were not called upon to act. Harriman v. Egbert, 36 Iowa, 270. We think that the demurrer was rightly sustained.
.Affirmed.