Bolton v. Lundy

• Decision Date: 31 August 1839
• Citation: 6 Mo. 46
• Parties: BOLTON v. LUNDY.
• Court: Missouri Supreme Court

6 Mo. 46

BOLTON

v.LUNDY.

Supreme Court of Missouri.

August Term, 1839.

APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY.

LEONARD, for Appellee. The only question presented by the record is whether under the act of the 16th of March, 1835, concerning “Securities,” Rev. St. of Mo. 574, a notice to sue, not in writing, is sufficient to discharge a security from his obligation. In support of the affirmative of this proposition, it is respectfully submitted to the court on behalf of the appellee that 1st, the words of the statute, to which securities are exclusively indebted for this remedy, do not require the notice to be in writing. The words are unlimited, as comprehensive as they can be “any person bound as security for another in anybond, &c., may require the person having the right of action forthwith to commence suit,” &c., Rev. St. of Mo. 574. To demand therefore a written notice, a requirement in writing, is a construction contrary to the plain letter of the act.

2. And contrary also to the intent of the Legislature, as is manifested in various ways. 1. There are many instances in the Revised Statutes of 1835, where the Legislature have required a notice to be given, and wherever it was their intention, that such notice should be in writing, they have so expressly declared. Rev. St. of Mo. 357, § 9; ibid. 220, § 6. 2. In the very statute now under consideration, we have two other instances of notices being required, and it being the legislative intention that, in these cases, the notice should be in writing, they have expressly made this requisition. Rev. L. 575, § 9 and 12. 3. The first act on this subject passed in 1816, Geyer's Dig. 368 § 1, expressly required the notice to be in writing, “may by notice in writing require,” &c. This phraseology was continued in the law through the revision of 1825 (Rev. L. of Mo. of 1825, 735, § 1), down to the last revision, a space of nearly twenty years, when the words “by notice in writing” were, as it must be presumed, intentionally omitted, with a view to a change of the law on this subject.

TOMPKINS, J.

Bolton sued Lundy in the Circuit Court, where judgment was given against him, and to reverse the judgment he appeals to this court. The suit was commenced in the Circuit Court on a note executed by John G. Williams and Richard Lundy to Bolton. On the trial it appeared in evidence, that Lundy gave verbal notice to Bolton to sue Williams, he, Lundy, being security only. It was contended that the notice should...