20 Wash. 116 | Wash. | 1898
The opinion of the court was delivered by
This was an action upon a promissory note given by several parties. The appellant resisted payment on the ground that he was only a surety upon the note, and that, after the same became due, he had notified plaintiff thereof and requested him to institute forthwith an action thereon. The reply contained a denial of the giving of such notice, and also the further allegation:
“ That after the alleged notice to sue was given by the said defendant Eamm, to the said plaintiff Hotting, defendant Hamm instructed said plaintiff not to sue upon said note, and said defendant Eamm also instructed the firm of H. Eemke and Brother, who had and held the said note for collection, not to sue upon the said note, long after the alleged notice to plaintiff to sue was given.”
The trial resulted in a judgment for the plaintiff, and defendant Hamm appealed. He first contends that the matter above set forth in the reply was insufficient to constitute a defense or waiver of the notice pleaded in the answer, hut we think the allegation was sufficient to warrant the proof.
It is next contended that an unreasonable time had ■elapsed after the appellant gave the notice to sue, whereby he was released, and that no further liability could he incurred by him without a new consideration. Although not ■specifically so stated in the appellant’s brief, we presume this has reference to the time between the giving of the notice to sue and the time of its alleged waiver. But, in any event, there is no foundation for error thereon in the
Affirmed.
Gordon, Anders, Dunbar and Reavis, JJ., concur.
