
    PHOEBE B. F. FOLSOM, APPELLEE, v. CHARLES B. SQUIRE, APPELLANT.
    Submitted March 23, 1905
    Decided June 12, 1905.
    .Judgment reversed for failure in plaintiff’s proofs.
    On appeal from District Court.
    Before Justices Dixon, Garrison and Swayze.
    Eor the appellant, William A. Lord.
    
    For the appellee, Howe '& Davis.
    
   The opinion of the court was delivered by

Garrison, J.

In the District Court the plaintiff recovered .a judgment for breach of the following agreement:

“In consideration of the letting of the premises above described, and for the sum of one dollar, I hereby become surety for the punctual payment of the rent and performance of the covenants in the within written agreement mentioned, to be paid and performed by L. B. Mclver, and if any default be made therein I do hereby promise and agree to pay unto P. B. F. Folsom such sum or sums of money as will be suffi•cient to make such deficiencies, and fully satisfy the conditions' of such agreement, requiring notice of .non-payment and proof of demand made.

“Given under my hand and seal the day of September 10th, 1902.

“C. B. Squire."

At the trial there was no proof that demand for the rent had been made upon the tenant, as required by the undertaking of the surety. There was testimony that the plaintiff had notified the surety that she had demanded the rent of the tenant, but there was no proof that in fact she had done so. Upon this ground the attorney for the defendant moved for a nonsuit, which should have been granted.

The judgment of the District Court is reversed.  