Lockridge v. Upton

• Decision Date: 31 January 1857
• Citation: 24 Mo. 184
• Parties: LOCKRIDGE et al., Respondents, v. UPTON et al., Appellants.
• Court: Missouri Supreme Court

24 Mo. 184

LOCKRIDGE et al., Respondents,

v.UPTON et al., Appellants.

Supreme Court of Missouri.

January Term, 1857.

1. A notice given to the holder of a promissory note, by one who had signed the same as a security, in the following form: “Sir--You are hereby notified that I will not stand good as security any longer on the note you hold against Wm. Upton and myself as security. [Signed] A. B.”--is not a sufficient requisition to sue within the meaning of the act concerning securities. (R. C. 1845, p. 998).

Appeal from Randolph Circuit Court.

This was a suit upon a promissory note against Wm. Upton and G. W. Dameron. The defense set up by Dameron was that he had signed the note as security for Upton, and that plaintiffs had failed to institute suit against the parties liable on the note within the requisite time after a requisition to sue given by Dameron to one of the plaintiffs, who were the payees of the note. The notice given by Dameron was not produced, it having been lost; but it was proven by parol evidence to have been as follows: “W. Y. Lockridge: Sir--You are hereby notified that I will not stand good as security any longer on the note you hold against Wm. Upton and myself as security. [Signed] George W. Dameron.”

Reed, Denny and Prewitt, for appellant, cited Routon's Administrators v. Lacy, 17 Mo. 399; 2 Yerg. 476; Beattie v. Butler, 21 Mo. 314.

Burckhartt, for respondent, cited R. C. 1845; Parish v. Gray, 1 Humph. 88; Greenawalt v. Kreider, 3 Barr, 264; Cape v. Smith, 8 S. & R. 110; Sappington v. Jeffries, 15 Mo. 698.

LEONARD, Judge, delivered the opinion of the court.

The notice was that defendant “would not stand good as security any longer,” and we think the Circuit Court was right in declaring it to be insufficient as a requisition to sue within the meaning of our statute. In Greenawalt against Kreider (3 Barr, 265), the security, after referring to a note held by the party against a third person, in which the party giving the notice and another were sued to be bail, formally notified the payee that “he would no longer be considered bail,” and requested him “to take another bond from the principal or payment,” and this was held to be an insufficient requisition to sue, and the remarks of the court in that case are marked with much good sense. The request “to take payment,” it is said, might perhaps be taken as a hint to sue, but a hint is not enough. There ought to be an explicit direction to sue, that there may be no misapprehension of...