Scales v. Cox

• Decision Date: 23 April 1886
• Parties: Scales and others v. Cox.
• Court: Indiana Supreme Court

106 Ind. 261

6 N.E. 622

Scales and others

v.Cox.

Supreme Court of Indiana.

April 23, 1886.

Appeal from Pike circuit court.

Ely, Townsend & Flesner, for appellant.

E. P. Richardson and A. H. Taylor, for appellee.

Niblack, J.

This action was commenced on the eighth day of June, 1885, and was brought by William H. Cox against Thomas J. Scales, Jarrett Stilwell, and William Bass, upon a promissory note for $500, dated the eighteenth day of September, 1882, and payable 12 months after date, with 8 per cent. interest from date. Scales made default. Stilwell and Bass answered together- First, in general denial; secondly, admitting the execution of the note, but averring that they executed the same as the sureties, and as the sureties only, for their co-defendant, Scales; that they, the said Stilwell and Bass, on the twenty-sixth day of February, 1883, delivered to the plaintiff a notice in writing, requiring him to institute an action upon the note described in the complaint when the same should become due, and notifying him that, if he should fail to so institute an action, they would no longer be responsible for the payment of the note; that the plaintiff, notwithstanding such notice, failed and neglected to institute suit on such note up to and until the time of the commencement of this action; that at the time of the maturity of said note, their co-defendant, Scales, was, and has ever since continued to be, a resident of the county of Pike, in this state, and was for a year thereafter solvent, and able to pay the amount due upon the note. The circuit court sustained a demurrer to this second paragraph of the answer of Stilwell and Bass, and a finding and judgment for the plaintiff for the amount of the note, with interest, thereupon ensued.

The only question made here is upon the sufficiency of the paragraph of the answer of Stilwell and Bass to which a demurrer was sustained, as above stated. Section 1210, Rev. St. 1881, provides that “any person bound as surety, upon any contract in writing, for the payment of money, or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action upon the contract.” The ensuing section 1211 declares that “if the creditor or obligee shall not proceed, within a reasonable time, to bring his action upon such contract, and prosecute the same to judgment and execution, the surety shall be discharged from all liability thereon.” The remedy provided, and the contingent relief afforded, by the foregoing sections, are purely statutory, and hence have no common-law origin or common-law precedent. Halstead v. Brown, 17 Ind. 202;...