
    Clark v. Osborn.
    1. The notice required by section 5833 Rev. Stats., in order to be available to a surety, must be in writing,'and require the creditor to commence an action forthwith on the obligation m which the surety is bound. No particular form or words are required. A substantial compliance with the statute is sufficient.
    2. The requirement that the notice shall be in writing confers a personal privilege on the creditor, which he may waive.
    3. The -executors of a deceased surety gave a written request to the creditor to commence an action forthwith on a note in which the decedent was bound as surety. The creditor held two notes m which the decedent was so bound for the same principal to which the notice would apply indifferently. Thereupon the creditor went to the executors, and, exhibiting the notes, said he accepted the notice as applicable to both. The executors explained the danger of delay, and urged him to sue at once. He promised to commence forthwith, and without further notice, an action against the principal on both notes, and collect them with due diligence.
    In an action against the executors, they, by answer, set up this arrangement and the creditor’s failure to comply.
    
      Held: The arrangement was a valid parol substitute for a formal notice, and the answer was a good defence.
    Error to the District Court of Coshocton County.
    Osborn sued one McKee and the executors of William Clark before a justice of the peace of Coshocton County. McKee was not served with summons. The suit was on two promissory notes made by McKee and the decedent who was surety thereon. Judgment passed, and the case was appealed to the common pleas.
    In the common pleas a demurrer to the second count of the answer was overruled. And an issue joined by that count and reply was tried to a jury. Verdict for the executors and judgment accordingly.
    On error to the district court this judgment was reversed for error in overruling the demurrer. The case is here on error to reverse the judgment of the district court. The question is: Is that count good in law ? It reads as follows :
    “2d. The said defendants, Samuel B. Clark and Hannah B. Clark, as executors as aforesaid, for a second defence to the petition of plaintiff, and to the two alleged causes of action therein contained, say, that the said defendant, Alexander McKee, was the principal maker of the two promissory notes described in plaintiff’s petition, and that said William Clark, deceased, signed said notes merely as the surety of the said McKee, and received no part of the consideration for which said notes were given, all of which was well known to plaintiff at the time said notes were delivered to him. That after the appointment of these defendants as executors as aforesaid, and after a right of action had accrued to plaintiff on said notes, and on the 21st day of January, A. d., 1878, they, the said Samuel B. Clark and Hannah B. Clark, as executors as aforesaid, served upon the plaintiff a notice in writing, requiring plaintiff forthwith to commence an action against said Alexander McKee, on said promissory notes, a copy of which notice is hereto attached, marked ‘ Exhibit A ’ and made a part of this answer. These defendants say that at the time of serving said notice on said plaintiff, they supposed and believed that the whole indebtedness of said Alexander McKee to plaintiff, and for which said William Clark, deceased, was surety, was all embraced in one promissory note, and had no knowledge that plaintiff held two notes of said McKee, upon which said William Clark, deceased, was surety, until after said notice had been served as aforesaid; and these defendants say that on the 22d day of January, A. d., 1878, after said notice had been served as aforesaid, said plaintiff came to said defendant, Samuel B. Clark, and exhibited to him said two notes in the petition described, when these defendants learned for the first time, that said indebtedness of said McKee to plaintiff Avas embraced in two promissory notes; and these defendants further say, that at the time plaintiff exhibited said notes to Samuel B. Clark as aforesaid, he then stated to these defendants, that although said notice, in terms, mentioned but one note, yet he accepted said notice as applicable to both of said notes, that he understood it to comprehend both of said notes, and would proceed accordingly to commence an action forthwith against said McKee, on both of said notes, and to collect the same in the ordinary course of law, with due diligence, without further notice from these defendants; these defendants further say that after the service of said notice on plaintiff as aforesaid, and after he accepted the same as applicable to both of said notes as aforesaid, he did not proceed with due diligence in the ordinary course of law to recover judgment against said Alexander McKee, for or by execution to make the amount of money or any part thereof, due by said promissory notes or either of them, but they say that said plaintiff neglected and failed to recover a judgment on said notes against said McKee, although at the time of the service of said notice as aforesaid, and for twenty days and more thereafter, said McKee was a resident of said township of Bethlehem, and during which time Avas entirely solvent, had property both real and personal, subject to execution, amply sufficient to have fully paid a judgment for the amount due on both of said notes and costs of suit, all of Avhich was well known to plaintiff during all of said time. These defendants further say, that at the time-plaintiff exhibited said notes to said Samuel B. Clark as aforesaid, he, the said Samuel B. Clark, then notified'plaintiff that there was danger that said McKee Avould dispose of his property within a short time, then urged plaintiff-not to delay, but to proceed at once to make. off. said McKee, by suit and. legal process, the amount due on said notes; and these defendants say, that some time thereafter said McKee did commence disposing of his property, and continued to dispose of and convert his property into money until he had nothing left subject to execution, and that plaintiff had full knowledge of the same during the time it was being done by said McKee; and although he had ample time and opportunity before said property was so disposed of as aforesaid, and after said notice had been served on him as aforesaid, to have collected the amount due on said notes by legal process, yet he neglected so to do. Wherefore and from all the premises these defendants ask to be released from any judgment in the premises against them.”
    “ Exhibit A” referred to in answer.
    “ Coshocton, Ohio, January 21 st, 1878.
    To Truman Osborn, Sir: You are hereby requested to commence an action forthwith, against Alexander McKee, on a promissory note which you now hold against said Alexander McKee, and signed by said McKee, and also signed by one William Clark, now deceased. Said McKee is principal debtor in said note, and said Clark was at the time of his death bound as surety.
    Hannah B. Clark,
    S. B. Clark,
    
      Executors of said William Ciarle, deceased.”
    
      John T. Simmons and Nicholas & James for plaintiffs in error.
    First — We maintain that the notice contains all that is required by the statute; or at least that it is a substantial compliance. In the case of Baker and Brim, administrators, against Kellogg and Nickols, 29 O. S. Rep., p. 665, the court, in discussing the sufficiency of such a notice, uses the following language: “ The statutory notice is to be one which shall ‘ require ’ the creditor ‘ forthwith ’ to commence an action against the principal debtor. The requirement must be unconditional; it must be a requirement to proceed by action, and to proceed forthwith.”
    
    All these elements are contained in the notice in this case. The word “ require ” is not used, but the word “ request ” is synonymous with it; it is not necessary to use the exact language of the statute. To “request” the payment of a note, payable on demand, would certainly be a legal demand — such as would entitle the holder to bring suit. The words “You are hereby requested” would indicate to the creditor as clearly and unmistakably a demand on him as the words “You are hereby required,” and would be a substantial compliance with the statute in that respect. This notice comes fully within the rule laid down by this court in the case cited. The requirement is unconditional; it is a requirement to proceed by action, and to proceed forthwith.
    
    It is not the mere expression of a “ wish ” that the creditor would “proceed” in some way to “collect the debt,” or “have it arranged in some way,” as the court said about the notice under consideration in the case above cited.
    Second — We maintain that, even if the notice is insufficient, its defects were fully and expressly waived by Osborn, and that he having agreed to accept it as a valid notice for both notes, and having expressly waived any further notice, and agreed to bring an action forthwith, he cannot now avail himself of any right to require a different notice. It is admitted by the demurrer that on the next day after the notice was served, and at the time the executors first learned that there were two notes, Osborn said to them, “ That although said notice, in terms, mentioned but one note, yet he accepted said notice as applicable to both of said notes; that he understood it to comprehend both of said notes, and would proceed accordingly to commence an action forthwith against McKee on both of said notes, and to collect the same in the ordinary course of law, with due diligence, without further notice from these defendants.” (Plaintiffs in error.)
    
      If the statutory notice can be waived at all, certainly no more positive or comprehensive waiver than that made by Osborn would be required to bring it within the rule.
    It has been settled by an unbroken line of authorities that the giving of the written notice by the surety to the creditor to sue, provided for by statute, as well as the execution of its requirements after it is given, may be waived by parol. Brandt on Suretyship and Guaranty, Sec. 508, p. 647; Taylor v. Davis, 38 Miss., 493 ; Smith v. Clopton, 48 Miss., 66; Hamblin v. McCallister, 4 Bush (Ky.), 418; Simpson v. Blunt, 42 Mo., 542; Gillilan v. Ludington, 6 W. Va., 128.
    
      Spangler & Pomerene, for defendant in error.
    The notice on its face is indefinite and uncertain. It does not specify to which one of the notes (there being two) it is intended to apply.
    The notice is insufficient under the statute, and therefore ineffectual for any purpose.
    The notice is only a “request” to commence an action.
    It does not, in the language of the statute, “ require ” Osborne to commence an action. It only requests.
    As to what a notice under this statute should contain in order to release a surety, we refer the court to the case of Baker v. Kellogg, 29 Ohio St., 663; and as to what will and will not release sureties, see Bank v. Reynolds, 13 Ohio, 84; Dye v. Dye, 21 Ohio St., 86; Moore v. Gray, 26 Ohio St., 525; Camp v. Bostwick, 20 Ohio St., 337.
    We think it is clear that the notice served upon Osborn is not a notice in compliance with the statute. It was-nothing but a request, which he might comply with or not, as he saw fit.
    The notice being insufficient as a statutory notice, availed nothing by being in writing, and amounted to nothing more than a verbal notice.
    If the court should be of opinion that ,the creditor may waive the notice, in writing, then we submit that the verbal notice, accepted by the creditor, should contain all the elements required to be in the notice, in writing.
    It cannot be claimed from the answer that any such verbal notice was given Osborn, or that he waived the notice, in writing, as required by the statute.
    As to the authorities cited in the brief for plaintiff in error herein, we submit that they are not, in any way, or to any extent, binding upon this court, and can have no influence whatever in this case, excepting in so far as this court may be impressed with the arguments upon which they are based, and in this connection we would quote the language of the supreme court in the case of Luckey v. Brandon and others, 1st Ohio 59, viz.: “ The court have not looted into the authorities cited by the plaintiff on this point; they could not adopt them if they sustain his position. The question stands too clear upon principle, and sound, practical good sense to be decided against these in deference to any authority.”
    We submit, therefore, as a summary of the whole argument : —
    1. That the written notice to sue, served upon Osborn in this case, is void as a notice under the statute, and therefore unavailable to work the release of the sureties in case Osborn failed to comply with it.
    2. That the written notice being a nullity under the statute, the parties stood in the same relations towards each other as they would at common law, and in the absence of any statute upon the subject, and that according to common law rules regulating the rights and obligations of sureties and creditors, nothing was said or done by or between these parties — according to the averments of the answer — that would impose any legal obligation upon Osborn to sue or operate to release the sureties in case Osborn failed to sue, as is shown by the authorities hereinbefore cited.
   Martin, J.

We are to inquire as to the sufficiency of the notice to sue in the circumstances stated in the answer. It is claimed that the notice was given to secure the benefits of section 5833 Rev. Stats., which reads: —

“ Any person bound as surety in a written instrument, for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless such creditor commence such action within a reasonable time thereafter, etc. . . . The creditor or assignee of such instrument so failing to comply with the requisition of such surety, shall thereby forfeit the right which he Would otherwise have to demand and receive of such surety the amount due thereon.”

Section 5834 provides that the executors or administrators of a surety may serve such notice with like effect.

The notice authorized by this section is simple in its elements. Is. it to be, (1) in writing; (2) a requirement to sue the principal forthwith, and inferentially; (3) a sufficient description or indication of the instrument.

It seems to be admitted that the written notice given by the executors is defective, for want of the last requisite. And it is claimed it is defective also because it is a request, and not mandatory in its terms. The statute does not require the use of any particular words; but the notice to be effectual must embrace the enumerated particulars.

Doubtless the use of the word request instead of the word require, or any of its synonyms, would not vitiate a notice, if the context showed it to be peremptory and adversary.

The defence set up in the answer is not based on the written notice. It consists of a series of facts, one of which is service of the defective notice. The complete statement discloses a waiver of written notice, and an express acceptance of verbal notice. It recites in substance that Osborn, in fact, held two notes against McKee, in which the decedent was bound as surety, and to which the notice would apply indifferently. That he thereupon went to the executors, and, exhibiting .the notes, said that he accepted the notice as applicable to both. The executors then explained to him the danger of delay, and urged him to sue at once. And he then promised that he would, without further notice, commence an action forthwith against McKee on both notes, and collect the same with due diligence.

In our opinion, the arrangement thus made was a valid parol substitute for a formal notice.

If the creditor had remained silent, or refrained from stipulations as to his duty, the written notice would have to be tested by its words alone. But a valid notice may be withdrawn, or a defective notice confirmed by consent of the proper party. And the question is, as to the meaning and effect of the arrangement set forth in the plea. We think that both parties understood at the time that the written request was a direction made in the assertion of a right, and not merely a friendly request. Its formal character indicates that such was the intention of the executors. And we are satisfied, as already stated, that the adjustment was, in intent and effect, a substitute for the formal notice prescribed by the statute. It was a waiver of an explicit and mandatory notice covering both notes, and which might otherwise have been given, and was calculated, naturally, to lull the executors into a feeling of security, and cause them to omit giving a corrected notice.

It is denied, however, that formal notice may be waived. The statute, in a sense, is a part of the contract. The suretyship is accepted with knowledge of its terms. It gives rights to both parties. The right of the creditor is to disregard with impunity any notice not in strict conformity to its terms. This is his privilege, and concerns him alone, and- is unaffected by considerations of public policy. Like other personal privileges, it may be waived. The enforcement of similar waivers is an every-day occurrence in our courts.

Even in criminal cases, an accused may waive a merely personal privilege. He may waive his right to a speedy trial, but he may not waive his right to a jury trial because of the most obvious considerations of public policy.

Again, it is objected that the answer is fatally defective, because it does not aver a failure to commence an action in due time.

It does aver a failure to prosecute it with due diligence.

As we have seen, the statute provides that the creditor shall forfeit his right against the surety, unless he commence the action within a reasonable time, and prosecute it to judgment against the principal with due diligence.

The duty of the creditor is to commence and prosecute the action. It is not sufficient to commence in due time. The language of the statute is distributive, and no service having been made on McKee, it would have been accurate to have laid the default either entirely or additionally in a failure to commence the action in due time.

Be this as it may, we think the default is sufficiently well pleaded to resist a general demurrer.

Judgment reversed.  