Christy's Administrator v. Horne

Scott, Judge, delivered the opinion of the court. 1. The notice to sue, as stated in the defendant’s answer, is sufficient. The objection to it is, that it requires suit to be brought against Wm. Horne and Andrew Horne, whereas it should have used the very words of the statute, and required that the suit should be brought against the 'principal debtor and other parties liable. This is a very nice objection, and we see no force in it; nor any reason why the statute should receive so strict a construction. In the case of Benton’s adm’r v. Lacy, (17 Mo. 399,) the words of the notice were, “ will no longer stand security for the principal debtor unless suit is commenced and prosecuted according to the law.” Though that notice was liable to the same objection as that now urged, yet the objection did not occur to any one. That notice was held to be sufficient. 2. We do not consider that any notice, under the circumstances, was necessary to the plaintiff to produce the notice with which he was served, requiring him to bring suit. The general rule is, that notice, to produce a notice, is not necessary, and the party may resort at once to parol proof of the contents of the notice, unless it appear that higher evidence is in his power. (3 Cowen’s Notes, 1198; 1 Greenl. Ev. § 561.) Here, inasmuch as the plaintiff was specifically informed of the de-fence on which the defendant relied, being his neglect to bring suit after notice requiring him so to do, and as it was averred in the pleading that the notice was lost, to permit him to insist [247] on a notice to produce tbe notice with which he was served would be to entrap the defendant. Under the circumstances, nothing was so natural as that the plaintiff should have the notice with him, if it was within his power, if he expected to gain any advantage from it. If it was not in his power, he sustained no injury by reason of the omission to give the notice. 8. Under the 5th section of the 24th article of the practice act, (see Sess. Acts, 1849, p. 98, § 5,) the defendant examined the plaintiff as a witness, exhibiting interrogatories to be answered. Among others was the following interrogatory,: “ State if-you know who was principal on the Christy note, and who securities, if you know that either of them was security for the other?” This was answered as follows : “ I further state that said defendant, A. M. Horne, was principal in the said Christy note, for the reason that said note was given to secure. the payment of the purchase money for a certain tract of land sold by said Christy in his lifetime to said A. M. Horne. But I do not know who were securities in said note, nor do I know whether the said Wm. Horne and Andrew C. Horne, -his brother, were securities in said note or not; nor do I know whether they were or either of them was security for the other in said note.” The defendant, conceiving that this was new matter relevant to the issue but not responsive to the interrogatory, .filed an answer or explanation of the alleged new matter, denying its truth. This answer was read against the objections of the plaintiff. Now, whether the answer of the plaintiff contained such matter as would warrant the court in allowing the defendant to be a witness in relation to it is the question. It does seem that if the answer of the plaintiff be deemed to contain new matter, it would be an easy thing for a party, who wished to be a witness for himself, to obtain his end by filing interrogatories to be answered by his adversary. If the answer to the interrogatory put contained any thing but the monosyllable “ yes” or “ no,” he would then claim the right to testify. The plaintiff was asked who was principal in the note. He answered, and gave the reason for his answer. If he be [248] lieved a fact, he must have had some reason for his belief ; and when he states why a fact is so, if the opposite party is permitted to controvert the reason, what is this but indirectly contradicting the answer itself. A party should not be permitted to answer in a way to make evidence for himself not responsive to the interrogatories ; but we consider that when he is called to answer a question, and he does so, and gives the reason for his answer, and that reason is such as if true would warrant the answer ; such reason can not be considered new matter within the 9th section of the 24th article of the act to which reference has already been made. The objection in relation to the refusal of the court to enter a judgment notwithstanding the verdict has been answered in what was said in relation to the notice to bring suit. Reversed and remanded ; the other judges concur.