Parrish v. Gray

A. F. M’Kinney, tlio security of Poison in a bond executed to Gray, gave Gray a notice in the following words: “I wish you to collect the debt oil' of Poison wheroiulam security. 1 st February, 1838. A. F.M’Kinney.’’ field that this was not such a requisition “forthwith to ¿nit Ike bond in suit,’'as would discharge M’Kinney in the event that Gray did not'put the bond in suit.

William Gray instituted an action of debt in the circuit court of Williamson county on the I9th day of April, 1838, against Joseph D. Poison, Charles D. Parrish, Alexander F. M’Kinney and Benjamin F. Tappan, upon a bill single. Poison was the principal and the others were his securities. Poison pleaded “payment and set off,” and a verdict and judgment were rendered against him, from which there was no appeal. The other defendants pleaded separate pleas, each resulting in an' issue upon the question whether the defendants had given the plaintiff such notice to institute suit upon the bond as is required by the act of 1801 to discharge him therefrom. At the March term, 1839, these issues were submitted to a jury. The plaintiff introduced and read to the jury an obligation for four hundred and fifty dollars, executed by Joseph D. Poison, Charles D. Parrish, Alexander F. M’Kinney and Beniamin S. Tappan, due the 25th of January, 1839. The defendants proved that on the 1st day of February, 1838, A. F. M’Kinney sent a notice to the plaintiff in the following words: “Mr. Wm. Gray: I wish you to’collect the debt off of Poison wherein I am security. “1st February, 1838. A. F. M’Kinney.” No person Isnew of the delivery of this notice but the wit ness who carried it. He told plaintiff he had better‘go and see Poison as Poison had just won five hundred dollars on a horse race, to which plaintiff replied that it was hardly worth while to see Poison on the subject. Poison was insolvent-Defendants further proved that plaintiff told the witness in October, 1838, that M’Kinney had given him notice to collect the debt or bring suit on the obligation; witness could not recollect the words used; and that he, plaintiff, went to town for the purpose of instituting suit in due time, but that he was prevented from so doing by an agreement on the part of Tappan to pay the money or confess judgment on the obligation at March term, 1838, if plaintiff would not sue on it. Defendants proved by another witness that plaintiff stated that M’Kinney had given him notice to bring suit on the obligation now in suit. This was just before March term, 1838. At the March term, 1838, Tappan declined paying the money or confessing judgment, inconsequence of a determination on the part of his securities to resist judgments over against them, and in consequence of a discovery of the notice given by M’Kinney. The court charged the jury that the notice necessary to discharge a security from his obligation to pay the debts of his principal must be such as the statute requires; that if the words used in the notice be ambiguous, they are to be taken most strongly against the party giving the notice; and if M’Kinney intended, by the notice' given in this case, to instruct the plaintiff to make a private application to Poison for the money he had won at the horse race, it would not be such a notice as the statute required. The jury found a verdict against all the defendants for four hundred and fifty dollars debt, and thirty-two dollars damages. A motion for a new trial was made and. overruled, and judgment rendered in accordance with the verdict; from which there was an appeal in the nature of a writ of error to the supreme court.