
    Lawson v. Buckley et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    July 2, 1888.)
    Principal and Surety—Notice to Proceed against Principal—Sufficiency.
    A notice by a surety on a promissory note to the holder, who received the same with knowledge of the suretyship, that he must “make Daniel (the principal] come to time this fall, ” as it is “ the best time for making money with farmers, ” is not such an “explicit notice or request to the ez-editors to take legal proceedings to collect the debt” as will discharge the surety on the subsequent insolvency of the principal. Landon, J., dissenting.
    Appeal from circuit court, Washington county.
    Action on a promissory note, brought by Peter Lawson against Timothy and Daniel Buckley. Judgment for defendants. Plaintiff appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      J. M. Whitman, for appellants. D. J. Sullivan, for respondent.
    
      
      Mere neglect to bring suit, or to make active efforts to collect the amount of a note from the principal maker, at the request of the surety, is not sufficient to discharge the latter. Benedict v. Thoe, (Minn.) 35 N. W. Rep. 10. The fact that when a debt falls due a surety requests the creditor to sue the principal debtor, who is then solvent, does not operate to discharge the surety upon the failure of the creditor to comply with the request, and the subsequent insolvency of the debtor. Smith v. Freyler, (Mont.) 1 Pac. Rep. 214. Under the Dakota statute it is held that, in order to so operate, there must be an explicit notice that, in case the creditor shall fail to sue, the surety will hold himself discharged. Kennedy v. Falde, 29 N. W. Rep. 667. See Silver Plate Co. v. Flory, (Ohio,) 7 N. E. Rep. 753, and note; Ingals v. Sutliff, (Kan.) 13 Pac. Rep. 828; Medley v. Tandy, (Ky.) 4 S. W. Rep. 308; Appeal of Neel, (Pa.) 11 Atl. Rep. 636; Graham v. Rush, (Iowa,) 35 N. W. Rep. 518.
    
   Learned, P. J.

This is an action on a note signed by both defendants. Nothing on the note shows that Timothy was surety. Nothing that is proved as to the negotiation of the note shows that the plaintiff was then told that Timothy was surety. But Timothy now claims that he was in fact surety, and that plaintiff knew this; and probably there is evidence to sustain this. He also claims that he told plaintiff, about three months after the note was made, that he must “make Daniel come to time this fall,” and that since that time Daniel has become unable to pay. This kind of defense is one that should never be favored. It is not just. The surety has the remedy in his own hands. He can pay up the debt, as by its terms he has agreed to do, and can then sue this surety; so that, if he fears the insolvency of the surety, he has abundant remedy. The doctrine came into this state against opposition. The same judge of the court of appeals who stated it rather strongly in Colgrove v. Tallman, 67 N. Y. 95, said in Hunt v. Purdy, 82 N. Y. 486, that it was not a favorite, and is not to be applied with laxity. See, to the same effect, Newcomb v. Hale, 90 N. Y. 326. In Hunt v. Purdy, the court say, at least, that the notice to the creditor should clearly inform him that he is required to take proceedings in the courts. To the same effect is Machine Co. v. Farrington, 82 N. Y. 121, 131: “Explicit notice or request to the creditor to take legal proceedings to collect the debt. ” Here this case fails. The only notice by Timothy to plaintiff is testified to by plaintiff himself: “You must make Daniel come to time this fall. You know it is the best time for making money with farmers.” How, this did not direct plaintiff to take legal proceedings. Timothy and Daniel were brothers. If Timothy wished plaintiff to sue Daniel at the peril of losing his claim on Timothy in case of neglect, he should have said so unequivocally. Very possibly, he did not wish to direct the plaintiff in express terms to sue, lest Daniel should blame him for so doing. The testimony above cited is all that is shown to have been said by Timothy. Plaintiff testifies that, to satisfy Timothy, he replied he would see Daniel about the note, and see what he bad been trying to do; so that this reply does not indicate that the request of the plaintiff implied that legal proceedings were to be taken. A motion to set aside the verdict as against evidence was denied. The case has been argued on the supposition that appeal has been taken; and the case shows that it contains all the evidence. It seems to me, therefore, that there was not evidence to sustain the defense. Judgment and order reversed; new trial granted; costs to abide event.

Ingalls, J., concurs.

Landon, J.,

(dissenting.) As the answer denied none of the allegations of the complaint, but set forth an affirmative defense, the defendant held the affirmative, and was entitled to open and close the case. The note was given April 1, 1881. The defendant Timothy Buckley signed it as surety for his brother Daniel. This seems to have been sufficiently shown. About three months after the date of the note, Timothy said to the plaintiff: “You must make Daniel come to time this fall. You know that it is the best time for making money with the farmers in the fall.” The plaintiff, who testifies to this, also testifies: “I saw Dan a month or two after, and told him: ‘I have to collect that note by Tim’s orders, or take the consequences.’ ” The plaintiff did not make the objection upon the trial, which he urges here, that the demand made by Timothy of the plaintiff to proceed against Daniel was not a demand to take legal proceedings. If he had, possibly further testimony would have been given. Timothy did not testify at the trial. Besides, the plaintiff understood that he was- to take legal proceedings if necessary. We do not think we ought to disturb the verdict upon this ground.

Plaintiff moved for a verdict upon the ground that there was no evidence showing that Daniel was not worth as much now as he ever was. It was incumbent upon the defendant to show that Daniel was solvent in the fall of 1881. The evidence is that he owned a farm of 70 acres, worth $60 per acre, incumbered by a mortgage of $2,500; “no other claim upon the farm.” He had cows, horses, and other property worth $446, making a total over the mortgage of $2,151. That he has no property now. He did not testify whether he then owed other debts besides the mortgage. He was not asked. Upon his cross-examination, he testified: “Question. Tell me where you have lost a dollar since then. Answer. In paying interest money, and raising my family. Q. If you paid interest money, it was on what you owed then? A. Yes, sir. Q. Then you did not lose it. A. Ho, sir. Q. You are worth a good deal less than you were in 1881? A. I have lost it paying debts.” He also testified that he had incurred debts since 1881, and that he was not worth as much now as then; that he had a wife and family of 10 children. How, it is true that he does not in terms say that he owed no other debts in 1881 than the mortgage, but from the statement lie did make we think the jury were at liberty to find that he was solvent in 1881, and had since then consumed bis. property in paying the interest upon the mortgage, and in supporting his family. The question was fairly left to the jury, and we think the judgment, must be affirmed.  