Coats v. Swindle

Wagner, Judge, delivered the opinion of the court. The plaintiff brought his action against the defendant, and one Reinmiller on a promissory note. The defendant answered ; and as matters of defense alleged that he signed the note as surety; that after the note became due,and more than thirty days before the institution of this suit,he requested the plaintiff to bring suit on the note; and he also stated that there was an agreement between the plaintiff and the defendant at the time the note was given that the former should proceed promptly to coerce the payment of the same. At the trial the defendant offered to prove that he was only surety on the note and that, at a time more than thirty days before the action was brought, he notified the plaintiff in writing to bring his action on the note. The [33] court refused to permit the defendant to introduce any evidence, on the ground that the answer constituted no defense to the action, because it was not stated therein that the notice to sue was given in writing. It has frequently been decided and the rule is settled that it is perfectly competent for a surety to show in what capacity or character he signed a note. The answer averring that the defendant requested the plaintiff to sue was sufficient. It was not necessary to plead that the request was in writing, that was a matter to be shown by the evidence. The statute requires that the requisition should be in writing, but it is sufficient if the pleading alleges the fact of notice and then it must be shown by the evidence that the statute has been complied with. The third defense set up in the answer was not admissible in evidence. It proposed to substitute verbal testimony where the law says written testimony is necessary. And in addition thereto any mere arrangement or understanding between the parties at the time the note was signed must be considered as merged in the written contract. But for the error in refusing to permit evidence to be given as to the defendant’s being a surety, and giving the notice to sue in writing, the judgment must be reversed and the cause remanded. The o.ther judges concur.