Greenawalt v. Kreider

• Decision Date: 24 June 1846
• Citation: 3 Pa. 264
• Parties: GREENAWALT <I>v.</I> KREIDER.
• Court: Pennsylvania Supreme Court

3 Pa. 264

GREENAWALT v. KREIDER.

Supreme Court of Pennsylvania.

June 22, 1846.

June 24, 1846.

June 22.

ERROR to Common Pleas of Lebanon county.

John Weidman, for plaintiff in error.—1. The notice is a good notice. In the case of Cope v. Smith, 8 Serg. & Rawle, 116, the reason why they did not bring themselves within the rule, was because they had not stated, that they would consider themselves discharged. So also in the Erie Bank v. Gibson, 1 Watts, 147, the sureties did not give the bank reason to suppose that they would consider themselves discharged. In this instance, the declaration, that the surety will hold himself discharged, is explicit.

Then as to the second branch of the requisites of a notice of this character. The surety requires the obligee to "take another bond, or payment." When the Supreme Court decided, that the notice should be distinct, they did not mean that it should be technical. Payment includes every thing that could possibly be required; the absolute cancellation of the suretiship by any means the obligee might think proper to pursue; so only that the surety who gave the notice should be released.

2. The notice being a good one, it discharges Adam Ritscher; and so also it discharges Charles Greenawalt. A release to one obligee is a release to both, in equity as well as in law. Bown v. Swadlin, 1 Atk. 343; and also in 2 Pothier on Obligations, 59 & 66, and in notes; where the same doctrine is decided. For as a release in deed to one obligor discharges the other, so of a release in law. 8 Reps. 136.

3. If it be not a release to Charles Greenawalt for the whole amount of the claim, it at least discharges him from the one-half of it; and this upon the principle laid down in 1 Poth. 323, top page, that where a creditor renders himself incapable of ceding his right of action against a co-surety, he loses his claim against the other surety, for so much as the co-surety would have been bound to contribute. Now, if this notice be good, Ritscher is certainly discharged; then what right of action can the plaintiff below cede to Greenawalt against Ritscher? By his own act, he has released him from all liability. Can he then exercise the power which is conceded to him in ordinary cases, which is recognised in Gardiner v. Ferree, 15 Serg. & Rawle 30, of offering the surety the bond to sue in his name?

Kline and Pearson, contrà, contended, that the notice was not sufficient to discharge Adam Ritscher, the co-surety. It was not within the rule laid down in Cope v. Smith, 8 Serg. & Rawle, 110; Gardiner v. Ferree, 15 Serg. & Rawle, and in Erie Bank v. Gibson, 1 Watts, 143. But, they argued, even if the notice were sufficient to discharge Ritscher, if he were the defendant in this suit, it is personal to him, and could not avail Greenawalt. As to Ritscher, it would operate...