Sapington v. Jeffries

1. A general averment, by a defendant, that he does not owe fhe money sued for, or any part thereof, is not sufficient under the new code; he must answer tbe plaintiff’s petition, by stating the facts upon which he relies. 2 The statute authorising any person bound for another, in any bond, bill or note, for the payment of money or property', as security', to give notice (o (he person having the right of action, forthwith to commence suit against the principal debtor, and other parties liable, requires the notice to be in writing; and the setvice of the notice to be on the person having the right of action on the instrument, personally, or by leaving a copy at his usual place of residence, with some white person of the family, over Ihe age of fifteen years. 3. If an answer entirely fails to show a defence to the plaintiff’s action, it may be stricken out, on motion.

APPEAL from Franklin Circuit Court. STATEMENT OP THE CASE. This is an action brought on a note executed by one C. D. Kanada, and defendant, as follows: “One day after date, we or either ofjus promise to pay to J. McDonald, adm’r of ihe estate of Huntington dec’d, sixty dollars and ninety cents, with ten per cent, interest, from date until paid. This 2nd day of January, 1844. C. D. KANADA, A. W. JEFFRIES.” The defendant filed an answer to plaintiff’s petition, stating 1st. That he did not owe the sum of money sued for, or any part thereof. 2nd. That he notified McDonald in his lile time, to sue Kanada, and the parties liable on the note. 3d. That said note afterwards came into the possession of Samuel Kennett, who declared that he was agent for Hur.tington and McDonald, and that defendant required said Kennett more than three years before the death of Karada, to r-ue Kanada and the parties liable, and said Kennett afterwards saw ICanada, and received new promises, &c., and finally failed !o sue Kanada, or use any diligence to try to collect said note. 4th. That said defendant was only security to said note. 5th. That said Kennett as agent and attorney for said plaintiff accepted said nolice as sufficient, ami did not object in any wise to its sufficiency, and that defendant would have given notice in writing', had it not been that defendant had requested said Kennett and plaintiff -to sue, and that they promised that suit should be instituted, unless the debt was paid; and that defendant gave himself no further trouble about it; and also, that Kennett received the notice as sufficient, without its being reduced to writing, or else he would have notified in writing. Plaintiff moved the court to strike olit said answer, because it did not state facts amounting to a defence to this action, which motion was sustained by the court, and the answer was stricken out; and the court proceeded to give judgment for the plaintiff, to which opinion and decision of the court, striking out said answer, and giving judgment for plaintiff, defendant by his attorney excepted, and applied for an appeal, which was granted. 'st. That the answer was good and that the court erred in striking it Out. 2nd. That it is in the power of a parly to waive notice in writing; even if such nolice was required by law to be given, to sue parties liable to be sued on the note. 3rd. That if a party assent to the sufficiency of a notice, although not in writing, as required by law, he cannot take advantage of such waive, and insist upon notice in writing. 4th. That giving time to the principal, without 1 he assent of the secuiily in the note, discharges the security : See Starkie’s Evidence, 2 vol. p. 776,777, 778. 5th. That the failure to sue the parties liable on the note, by the principal, and also by the agent, after notice given by the security to institute suit, discharges security. See Rev. Slats, on subject of securities. 1st. That the circuit court did not err in striking out the answer of the defendant, because said answer did n ot aver that defendant had given notice in writing to plaintiff, requiring him to sue. See Rev. Stats., p. 998 and 999, sec. 1, 2 and 3. 2nd. That the averment in said answer, that the defendant requested plaintiff’s agent to sue, and that said agent accepted said notice as sufficient, without requiring it to be in writing, is no defence to the action, because the notice should have been given to plaintiff and not to his agent, and should have been in writing.