Peterman v. Southern Cotton Oil Co.

BROWN, J. The statute (Code 1907, § 5396) provides that: “A surety upon any contract for the payment of money, or * * * delivery of personal property, may require the creditor, or any one having the beneficial interest in the contract by notice in writing to bring suit thereon against the principal debtor, or against any cosurety to such contract; and if suit is not brought thereon, pursuant to such notice, to the first court to which suit can be brought after the receipt of such notice, and prosecuted with diligence according to the ordinary course of law, the surety giving such notice is discharged from * * * liability,” etc. One of the defenses interposed by the appellant was that he gave the plaintiff notice under this statute before this suit was brought to sue the principal on the note, and that the plaintiff did not sue pursuant to such notice, (1) The notice is alleged to have been embodied in a letter written to the plaintiff and sent to it through the United States *493 mail, and, without notice to produce the letter, the defendant offered to prove its contents, and the action of the court in refusing to allow this proof is the only matter urged by appellant on this appeal. The contention made is that the contents of the letter was collateral matter not requiring the best evidence, but this contention cannot be sustained. The written notice was the very foundation of the defendant’s plea, just as much so as the note was the foundation of the plaintiff’s complaint, and the defendant was not entitled to offer secondary evidence of the contents of the letter in the absence tc produce the original, or a showing that it was lost or out of the jurisdiction of the court. — Gray v. Rogers, 109 Ala. 624, 20 South. 37; Potts v. Coleman, 86 Ala. 94, 5 South. 780; Phoenix Co. v. McAuthor, 116 Ala. 659, 22 South. 903, 67 Am. St. Rep. 154; O’Neal v. McKinna, 116 Ala. 606, 22 South. 905; Crenshaw County v. Sikes, 113 Ala. 626, 21 South. 135; McCormick & Richardson v. Joseph & Anderson, 83 Ala. 401, 3 South. 796. And this is true though the letter is shown to have been in the hands of the adverse party. — Gray v. Rogers, supra; Railway Co. v. Davis, 91 Ala. 621, 8 South. 349. (2) The refusal of the trial court to suspend the trial was a matter of discretion that will not be reviewed. We find no error in the record, and the judgment is affirmed. Affirmed.