Reid v. Cox

Sullivan, J. Debt oil a promissory note by Cox against Reid. The declaration avers that on the fifth day of June, 1839, the defendant (with others) made his note in writing, by which he promised to pay to the plaintiff^ one day thereafter, the sum of 653 dollars, &c. The defendant pleaded, 1. Nil debet; 2. That he executed said note as surety for Moffitt fy Co., they being principals, and that on the tenth day of December, 1838, he notified the plaintiff in writing to sue, &c., but that plaintiff neglected and refused to do so; 3. The same substantially as the second plea. Replications to the second and third pleas, that the plaintiff did, within a reasonable time after receiving said notice, sue the makers of said note. The cause, by agreement of parties, was tried by the Court, and judgment given for the plaintiff. On the trial the plaintiff, in support of the averment in his declaration, introduced a promissory note dated the twenty-fifth of June, 1838, payable one day after date. The defendant objected to the introduction of the note as evidence, but the Court overruled the objection and received the testimony. This is the first error complained of. The variance between the note declared on, and the note offered in evidence, was material. It is not necessary to inquire, whether, in an action on a promissory note alleged to have been made by the defendant on a certain day, proof may not be adduced to show that he made it on a different day. However that may be, the plaintiff in the present case has made the time of payment a material part of the contract. The declaration avers, substantially, that the defendant promised'to pay one day after the fifth of June, 1839. The note introduced proved a contract to be performed at a different time. The time.-ovf payment is of the very essence of a contract, and in all actions on written contracts, the contract given in evidence must correspond with that stated ” [314] in the declaration. Sheehy v. Mandeville, 7 Cranch, 217. There was, therefore, a material variance between the note declared on and the note offered in evidence, and the proof should have been refused. C. B. Smith, for the appellant. J. S. Newman, for the appellee. On the trial of the cause,, the defendant having proved that he was the surety of Moffitt Co., and that he had given written notice to the plaintiff to sue, the plaintiff offered evidence, amongst other things, to prove the insolvency of Moffitt 4* Co., to which the defendant objected, but the Court permitted the testimony to be given.. By the “ act concerning debtors and'their securities,” approved Feb. 17th, 1838, it is the privilege of the surety, if he apprehend the insolvency of the principal, or his removal from the state, to require the creditor, by notice in writing, to commence suit on the demand, and if the creditor shall fail to sue within a reasonable time, the surety shall be discharged. The statute is imperative. It leaves no discretion with' the creditor. Whether the principal debtor be insolvent or not, .it is the privilege of the surety to require suit to be brought and diligently prosecuted to final judgment, that the ability of the principal to pay may be tested. The statute is a remedial one, and must receive such a construction as will best promote the remedy intended. Per Curiam. The judgment is reversed, and the proceedings subsequent to the issues set aside, with costs. Cause remanded, &c.