Tenant v. Tenant

Mr. Justice Green delivered the opinion- of the court November 2d, 1885. The contract in suit in this case was in form a promissory note under seal for the payment of $130.52, dated Oct. 26th, 1869, pajmble at nine months from date. No place of payment is designated in the instrument, but it was given to A. W-Tenant, administrator, etc., of William Tenant, deceased, who was a resident of West Virginia at the time of his death, and the administrator was and is, also, a resident of the same state. The note was given in payment of certain articles purchased at administrator’s sale held in' West Virginia soon after the intestate’s death, and was delivered to the payee in that state. Two sureties joined in the note, one of whom lived in West Virginia and the pther in Pennsjdvania, and it is against these the present suit is brought. Of course, the note being payable at the residence of the pajme and having been delivered there, for goods sold there, must be deemed and taken to be a. West Virginia contract. This contract was made,and was to be performed; in that state and hence the law of that state must govern in determining its validity, obligation and construction. The only question in the case is,whether the defence setup by the sureties must be determined by the law of West Virginia or the law of Pennsylvania. The defence is that the sureties gave notice to the creditor that he must proceed against the principal for the collection of tb,e note or they would no longer [485] be responsible. By the law of West Virginia such a notice, to be effective, must be in writing. In this case it was verbal only and therefore if judged by the law of West Virginia it was nugatory. It is argued for the defendants that this right of relief to a surety is a matter relating to the remedy and must therefore be determined by the lex fori. But we do not think this position tenable. The right of a surety to discharge his obligation by notice to the creditor to pursue,the debtor, is an incident of the contract of suretyship. It is a part of the law of that contract and is therefore a part of the contract itself. It is a qualification of the obligation of the contract, reducing it from a peremptory and absolute obligation to one of a qualified or conditional character. It is true the surety may not exercise his right and if he does not his obligation remains intact. But on the other hand he may exercise it and if he does, and the creditor pays no heed to the notice and thereby fails to recover from the principal debtor, the very root of the surety’s obligation is reached and destroyed; he is no longer liable; it is as though he had never contracted. Very different is this from the defence of the Statute of Limitations. There the obligation of the contract is not terminated or defeated. Only a right to enforce it by an action in the courts is imperilled. The state simply declares that if her process is used it must be done within certain fixed periods of time, and if not so used the defendant may at his option plead the laches of the plaintiff and receive the benefit of the prohibition. It is in substance a prohibition upon the use of process after a defined period, and this, of course, makes it matter of remedy only. For these reasons we think it quite clear that the right of a surety to discharge his obligation by a disregarded notice to the creditor to pursue the principal debtor, is a matter affecting the obligation of the contract and most therefore be determined by the law of the place of the contract. The notice given in this case was verbal only and therefore of no effect by the law of West Virginia and hence unavailing here. Another defence offered to be proved but rejected was, that the plaintiff had in his hands the means of satisfying the debt due by the principal debtor, because he had bought from the debtor an interest in some land for $400 and paid him the money for it instead of applying enough of it to pay off this debt. The offer of proof does not disclosq whether the debtor was willing to convey his land to the plaintiff, and take the note in suit in part payment, and if he was not willing it is difficult to see bow be could have been compelled to do so. Nor does the offer disclose whether the debtor did convey, or was willing to convey, the land upon credit, and without that element it does not appear that the plaintiff ever did have the [486] means of extinguishing the debt in suit by applying his own debt in discharge of it. For aught contained in the offer it does not appear that the debtor was willing to accept or did accept anything but actual cash down as the consideration of his conveyance, and therefore there was no error in rejecting the offer. But even if the plaintiff did for a time owe the purchase money to the principal debtor, it was due by him individually, while the debt due to him was due in his representative capacity and he certainly could not lawfully use the assets of the estate to pay his private debt. He could notin any event be compelled to do so against his will, and that is what is asked by the rejected offers of proof: Miller v. Ege, 8 Barr, 856. As to the proof of the law of West Virginia by means of a printed volume purporting to be printed by authority and to contain the laws of that state, the very question was ruled in Mullen v. Morris, 2 Barr, 85, in favor of its admissibility. Judgment affirmed.