W. P. Brown & Sons Lumber Co. v. Steele

SOMERVILLE, J. As stated in brief of counsel for appellants, there are but two questions in this case: (1) Was the notice to sue sufficient in form? and (2) was it given to the proper person ? (1) 1. While the notice is lacking in technical precision, we think it substantially conforms to the requirements of the statute. — Code, § 5396. A demand for suit on the note necessarily means against the makers of the note; and it was long since held that a notice to bring suit “against the parties” to a note is a sufficient designation of the persons to be sued. — Pickens v. Yarbrough’s Adm’r, 26 Ala. 417, 420, 426, 62 Am. Dec. 728. This [213] meets the rule declared in Shehan v. Hampton, 8 Ala. 942, 946, that: “When a statute requires an individual to be designated to another, there must be sufficient information given to enable the person to be ascertained with certainty.” Here there was but one note, and the payee knew who was-the principal debtor, and who was the surety, and the exact nature of the demand could not be mistaken. (2, 3) 2. When money, or other property, or a written instrument, is delivered in escrow to a depositary, to be delivered by virtue of an executory contract to a third person, who is entitled thereto upon the performance of his obligations in the premises, there is as to such property neither title nor right of possession in such third person until he has himself performed in accordance with the conditions attached to the escrow. In the present case it seems clear beyond controversy that the plaintiffs were not the owners of the note on July 5, 1911, in such sense, either legally or equitably, as entitled them to maintain a. suit thereon. — Carter v. Turner, 5 Sneed (Tenn.) 178. In Pickens v. Yarbrough’s Adm’r, 26 Ala. 417, 425, it was said: “If a debtor deposits notes unconditionally with a creditor as security for a debt, he thereby gives to the latter the control and direction so far as their collection is concerned, and it then becomes the creditor’s duty to take all necessary measures to prevent the discharge of any of the parties to the notes received by him.” (Italics supplied.) This emphasizes our conclusion that a merely contingent interest in a chose in action, without present possession or right would not support a suit by the expectant owner. (4) The statutory notice must manifestly be given to the person who can sue at the time, and that person in this case was Hunter, the original payee. It results from these views that the rulings and instructions of the trial court were free from error, and the judgment will be affirmed. Affirmed. Anderson, C. J., and Gardner and Thomas, JJ., concur.