Rotting v. Cleman

Washington Supreme Court October 26, 1898

Rotting v. Cleman, 20 Wash. 116 (Wash. 1898)

54 P. 935; 1898 Wash. LEXIS 477

Scott

Opinion of the Court

The opinion of the court was delivered by

Scott, C. J.

This was an action upon a promissory note given by several parties. The appellant resisted payment on the ground that he was only a surety upon the note, and that, after the same became due, he had notified plaintiff thereof and requested him to institute forthwith an action thereon. The reply contained a denial of the giving of such notice, and also the further allegation:

“ That after the alleged notice to sue was given by the said defendant Eamm, to the said plaintiff Hotting, defendant Hamm instructed said plaintiff not to sue upon said note, and said defendant Eamm also instructed the firm of H. Eemke and Brother, who had and held the said note for collection, not to sue upon the said note, long after the alleged notice to plaintiff to sue was given.”

The trial resulted in a judgment for the plaintiff, and defendant Hamm appealed. He first contends that the matter above set forth in the reply was insufficient to constitute a defense or waiver of the notice pleaded in the answer, hut we think the allegation was sufficient to warrant the proof.

It is next contended that an unreasonable time had ■elapsed after the appellant gave the notice to sue, whereby he was released, and that no further liability could he incurred by him without a new consideration. Although not ■specifically so stated in the appellant’s brief, we presume this has reference to the time between the giving of the notice to sue and the time of its alleged waiver. But, in any event, there is no foundation for error thereon in the *118record, as it does not appear at what time the notice to sue was given, other than it Was given on the-day of February, 1894. This was so found by the jury in their special findings, and the jury also found that on the 3d day of March following the appellant agreed with the plaintiff that suit should not be brought at once, and consented that further time might be given the principal defendant. There was no unreasonable delay shown here.

Affirmed.

Gordon, Anders, Dunbar and Reavis, JJ., concur.

Reference

Full Case Name: Nick Rotting v. Jacob Cleman, J. H. Ramm
Status: Published
Syllabus: PRINCIPAL AND SURETY — NOTICE TO SUE — WAIVER — PLEADING. Where the answer of defendant in an action on a promissory-note sets up the defense that he was a surety and that plaintiff failed, on his request, to sue the principal, a reply that after the alleged notice to sue was given by the surety, the latter instructed the plaintiff not to sue upon the note, is sufficient to warrant proof of the waiver. Unreasonable delay in suing the principal at the request .of a surety is not shown, where notice to sue was given some time in February and a waiver of the notice given on the third, day of the succeeding month.