Rowe v. Buchtel

13 Ind. 381

• Court: Indiana Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Perkins, J.

On the 1st of April, 1852, one Bambarger made his note, at Elkhart, Indiana, for 125 dollars, payable to Rowe on the 1st of April, 1853, and Bambarger executed said note with Buchtel as surety.

In November, 1856, Buchtel gave Rowe written notice to sue on the note. But Bamba/rger had then left the state, and he never returned to it, but died, in Ohio. He left no property, and never had any administrator in Indiana.

Rowe did not commence suit against any one on the note, at the first term of the Court after receiving notice to sue; but at the second term thereafter, he sued Buchtel. Buchtel defended on the ground that he, himself, had not been sued at the first term after the notice, and his defense was held valid by the Court.

The Court erred in a very plain case. The notice to sue did not operate as a requirement to sue the surety. No suit against him was necessary to secure any rights against his principal. He could have paid the note at any time without suit, and then proceeded against his principal. Chit, on Cont., 7 Am. ed., p. 597, and notes.

J. A. Liston, for the appellant. H. C. Newcomb and J. S. Tarkington, for the appellee.

And the payee of the note was not bound, upon notice, to follow the principal out of the state. This is the rule as to diligence, on assigned notes. So such absence excuses a demand, in cases where a demand would otherwise be necessary.

The judgment is reversed with costs. Cause remanded, &c.