Baker v. Kellogg

In our judgment the court did not err in admitting Nickols as a witness. There was no controversy between him and the plaintiffs. In order to render a party *665incompetent as a witness under section 313 of the civil code (as amended March 23, 1875, 72 Ohio L. 77), the parties must be adverse in interest, and not merely in their nominal status in the case, as plaintiffs or defendants. Here the only issue in the case was between 'the plaintiffs and Kellogg, and the fact that Nickols was joined with him in the action is no good reaso.n why he should be deprived of the benefit of Niekols’ testimony.

As to the question of the admissibility of parol evidence to prove the suretyship, it is only necessary to say that we deem the law well settled, at least in this state, that such evidence is competent.

The remaining questions are, whether the notice given by Kellogg is such as the statute requires, and whether its service upon only one of the administrators was sufficient. We have no hesitation in answering the latter question in the affirmative. We see no good reason for requiring notice to more than one of the administrators in such a case, than there is for requiring notice to more than one of several joint contractors. In both cases, we think, notice to one is notice to all.

But does the notice itself contain what is required by the statute? We think not. The statutory notice is to be one which shall “ require ” the creditor “ forthwith to commence an action” against the principal debtor. The requirement must be unconditional; it must be a requirement to proceed by action, and to proceed forthwith. These statutory elements are not contained in this notice. It is the mere expression of a “ wish” that the creditors would “ proceed,” in some way, to “ collect ” the debt, “or have it arranged in some way.” In view of the fact that the statute provides for the release of a party from a fixed legal liability —from the payment of a debt which he justly owes — its requirements should be at least substantially, if not strictly and literally complied with. We think, therefore, that the court erred in holding this notice sufficient. Eor this error the judgments of both courts must be reversed.

JudgrAent'accordingly.