Koenig v. Bramlett

• Decision Date: 09 February 1886
• Citation: 20 Mo.App. 636
• Parties: W. KOENIG ET AL., Appellants, v. R. BRAMLETT ET AL., Respondents.
• Court: Missouri Court of Appeals

20 Mo.App. 636

W. KOENIG ET AL., Appellants,

v.R. BRAMLETT ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.

Reversed and remanded with directions.

O. B. GIVENS, for the appellants.

A. R. TAYLOR, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This was an action upon a promissory note against the defendants as joint makers. Bramlett made no answer, and there was a judgment by default as against him. Maxey answered, setting up that he was a surety on the note; that as such surety, he did, “on the third day of January, 1885, and after an action had accrued on said note, require the plaintiff, in writing, forthwith to commence suit against the principal debtor, Bramlett, which said notice was duly received by the plaintiff, and the plaintiff failed, refused, and neglected,” so to bring suit within the time so required by the statute, whereby this defendant was discharged.

It appeared in evidence at the trial that the note was of the following tenor:

“$103.00.

WEST PLAINS, MO., January 4, 1884.

On or before the first day of January, 1884 (should read 1885), I promise to pay to the order of Aultman, Miller & Co., one hundred and three dollars for value received, in one Buckeye Dropper, payable at the office of J. H. Maxey, in West Plains, Mo., with exchange on St. Louis or New York, and interest from August 1, 1884, at the rate of eight per cent. per annum until paid.

RUFUS BRAMLETT.”

It also appeared that the indorsement of the defendant Maxey thereon was as follows:

“For value received I hereby guarantee the payment of the within note, and any renewal of the same, and hereby waive protest, demand, and notice of demand and non-payment.

J. H. MAXEY.”

It also appeared in evidence that, on the third day of January, 1885, the defendant Maxey mailed to the plaintiffs the following letter:

“WEST PLAINS, MO., January 3, 1885.

WM. KOENIG & CO.:

DEAR SIRS--Yours in regard to Barnett note received. In reply, I have to say that Mr. Barnett is good; also, all the others are good. All notes I took for you, with the single exception of Rufus Bramlett, and as his indorser, I now hereby notify you to take legal steps to make your money. I will be prepared in about ten days to make a full settlement with you, and will then remit what I owe you.

Yours truly,

J. H. MAXEY.”

It also appeared that the plaintiffs replied, acknowledging the receipt thereof, but that, nevertheless, they failed to bring suit upon the note against the maker, Bramlett, until the twenty-seventh of April, 1885, more than thirty days after the receipt of this notice.

The statute, under which the defendant Maxey claims to be discharged, is as follows: “Any person bound as surety for another in any bond, bill, or note, for the payment of money or delivery of property, may, at any time after an action has accrued thereon, require, in writing, the person having such right of action, forthwith to commence suit against the principal debtor and other parties liable.” Rev. Stat., sect 3896. “If such suit is not commenced within thirty days after the service of such...