Edmonson v. Potts' Adm'rt&dagger

• Decision Date: 09 June 1910
• Court: Virginia Supreme Court
• Parties: EDMONSON et al. v. POTTS' ADM'RT&dagger

68 S.E. 254

111 Va. 79

EDMONSON et al.

v.POTTS' ADM'RT†

Supreme Court of Appeals of Virginia.

June 9, 1910.

1. Appeal and Error (§ 927^*)—Demurrer to Evidence—Review.

Where the case is heard as on demurrer to evidence, defendant, obtaining a judgment in the trial court, is entitled to the benefit of the most favorable construction which can be placed on his evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2912; Dec. Dig. § 927.*]

2. Principal and Surety (§ 126^2-*) — Discharge of Surety—Failure of Creditor to Sue Principal Obligor—Notice.

The notice which will discharge a surety under Code 1904, § 2890, providing that the surety on any matured obligation may require the creditor by notice in writing forthwith to institute suit thereon, must show an unequivocal demand on the creditor to sue on the obligation; and notice by a surety on a note to the holder thereof to take such action as is necessary to get the surety's name off the note, and a request to sue one of the several parties to the note, were not an explicit demand to sue on the note, and the failure of the holder to sue thereon did not release the surety.

[Ed. Note.—For other cases, see Principal and Surety, Cent Dig. §§ 329-351; Dec. Dig. § 126.*]

Error to Circuit Court, Mecklenburg County.

Action by J. W. Edmonson and another, receivers of the Bank of Mecklenburg, against E. H. Potts' administrator. There was a judgment for defendant, and plaintiffs bring error. Reversed and rendered.

W. E. Homes, Abner C. Goode, C. T. Baskerville, Chas. J. Faulkner, Jr., and E. P. Buford, for plaintiffs in error.

Wood Bouldin, for defendant in error.

BUCHANAN, J. The material question involved in this case, and the only one that it is necessary to decide, in the view we take of the case, is whether or not the notice to sue, relied.on by the defendant as barring the plaintiffs' right of recovery, was sufficient under the provisions of section 2890 of the Code of 1904.

That section, so far as relevant to this case, is as follows: "The surety or guarantor or indorser (or his committee or personal representative) of any person bound by any contract may, if a right of action has accrued thereon, require the creditor, or his committee or personal representative, by notice in writing, forthwith to institute suit thereon. * * *"

The contract sued on in this case is a negotiable note, made by the Mecklenburg Live Stock Company, for $2,000, payable to and indorsed by E. H. Potts, the defendant's intestate, and C. W. Harris and B. E. Cogbill, and is owned by the Bank of Mecklenburg, of which the plaintiffs are the receivers.

The notice to sue relied on by the defendant was not a formal notice to the bank, hut was contained in letters written by the defendant, as the administrator of E. H. Potts, deceased, to the cashier and president of the Bank of Mecklenburg. Neither the letters nor copies thereof were introduced in evidence, but the writer of the letters and the officers to whom they were written respectively testified to their contents.

The defendant stated that some time after his decedent's death he was informed of the existence of the note sued on, and that it was held by the Bank of Mecklenburg. He about the same time learned that his decedent had made a settlement with Mr. Cogbill, one of the indorsers on the note, through his attorney, Mr. Faulkner, who was also president of the bank, in which his decedent had paid Mr. Cogbill his share of the note. The defendant thereupon wrote "the cashier of the bank at Boydton, and explained the nature of the settlement and asked that such steps be at once taken by the bank as would release Mr. Potts' name on the note as surety. Subsequently I wrote to Mr. Faulkner as president of the bank and urged that he take such action as would release Mr. Potts' name. I frequently talked with Mr. Faulkner with regard to his bringing suit against Mr. Cogbill in order that the matter might be closed, as I as administrator desired to close the administratorship of the Potts estate. The notices were in writing to Mr. Faulkner as president of the bank to bring suit or take such action against Cogbill so as to liberate Mr. Potts' name as surety." He further testified that he could not recall "the language of the different notices, but they all urged the bank to take such action as was necessary to get Mr. Potts' name off the note."

Mr. Overby, the cashier of the bank, in testifying to the contents of the letter to him, said that he could not state when he "received notice to bring suit, though it was some time after the maturity of the note. My recollection of the contents of notes [notice], which was in writing, was to the effect that Mr. Gregory, as administrator, wished the bank to take such steps as would relieve Mr. Potts' estate of any responsibility as indorser on note."

The testimony of the president of the bank, Mr. Faulkner, as to the contents of the letters...