Kaufman v. Wilson

Elliott, J. Suit by Kaufman, the appellant, against Noland $ Philips, and Wilson, the appellee. Noland ft Philips were duly served with process, but made default, and judgment was rendered against them. The suit was on a promissory note for $175. Wilson appeared and filed an answer, alleging that he was only the surety of Noland ft Philips on said note, and that on the 25th of May, 1867, he sent to the plaintiff a notice by telegraph, which the latter [505] received on the same day, as follows, viz: “ S. Kaufman, No. 219 East Washington street, Indianapolis, Indiana; Express Noland ^ Co.’s note to Esquire Bennett, for collection, to-day. Don’t fail. May 25,18 67.” [Sig’d] “Josiah Wilson.” It is also alleged that Esquire Bennett was a justice of the peace of Wayne township, in Bartholomew county, Indiana, where all of the defendants resided; that the plaintiff did not send the notejto Bennett, as directed, nor did he commence suit thereon until the 18th of June, 1867, at which time this suit was instituted; that at the date of said notice, Noland $ Philips were solvent, and if the note had «been sent to said Bennett for suit, it might have been collected from them, and said Wilson would have been saved harmless, but that Noland Philips afterwards, before the suit was instituted on said note, became insolvent. A demurrer to this paragraph was overruled, to which the appellant excepted. Issue was then taken on it, and on the final hearing judgment was rendered in favor of Wilson. The whole question in the case is presented by the demurrer to the answer. The code provides that “any person bound as surety upon any contract in writing for the payment of money, or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to -institute an action upon the contract. If the creditor or obligee shall not proceed within a reasonable time to bring his action upon such contract, and prosecute the same to judgment and execution, the sui’ety shall be discharged from all liability thereon.” 2 G. & H., §§ 672, 673, pp. 307, 308. The Common Pleas was the first court held in Bartholomew county after the date of the notice, and the suit was commenced in that court and process served 'on the parties more than ten days before the commencement of the term; but the amount of the note was within the jurisdiction of a justice of the peace, and it’ is insisted by the appellee that, under the statute and notice, the appellant had no choice of [506] forums, but was bound to sue before a justice of the peace, as a judgment could sooner be recovered there, and that it was unreasonable to delay suit until the sitting of the Court of Common Pleas. It is also urged by the appellant that a notice by telegraph is not a notice in writing, within the meaning of the statute. We do not find it necessary to pass upon either of these questions, as the notice, for other reasons, is radically defective. It does not require the appellant to institute an action forthwith upon the contract or note, but to express it, that day, to Esquire Bennett for collectidn. How was it to be collected? For aught that appears, it was the intention of Wilson to pay it, or, that if sent to Esquire Bennett, it would be paid by Noland § Philips. R. Hill and G. W. Biehardson, for appellant. W. Herod and W. W. Herod, for appellee. It is alleged in the answer that Bennett was a justice of the peace of Wayne township, in Bartholomew county, where the makers of the note resided; but no such information is contained in the notice. The appellant resided in Indianapolis, and was there notified to send the note to Esquire Bennett for collection; but who Esquire Bennett was, or where he resided, or in what capacity he was expected to act, whether as an attorney or justice of the peace, does not appear by the notice. It was not the province of Wilson to direct in whose hands the note should be placed for collection, but by notice in writing to require the appellant forthwith to institute an action on the note against the principals ; and if he failed to do so in a reasonable time, Wilson, as the surety, would have been discharged. Such was not the notice given. It did not discharge Wilson, and the court erred in overruling the demurrer to the answer. The judgment must therefore be reversed. The judgment is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to the answer, and for further proceedings not inconsistent with this opinion.