Miller v. Gray ( 1889 )

Phillips, J.

Appellant, with one Francis Beck, were sure ties on a note for Martin C. Beck, payable to appellee. Appellant gave appellee a notice, as follows:

“ Carmi, Ill., Feb. 10, 1888.

“ Mr. W. W. Gray :

“You are hereby notified that I don’t want to stand longer as surety on the note given by Martin C. Beck on which I am surety. You. will therefore make your money.

“ Leonard Miller.”

A letter from appellee of date February 13,1888, acknowledging receipt of that notice; was in evidence. On the 20th of March, 1888, suit was brought against appellant and others, makers of the note, and judgment recovered before a justice of the peace, and an appeal prosecuted to the County Court. Because of the judge of that court having been of counsel the 'cause was certified to the Circuit Court, and on trial the plaintiff recovered a judgment, and this appeal is prosecuted.

The notice and receipt of it by appellee being shown, was the notice sufficient ? It shows the relation of principal and surety; that the surety did not want to be longer held, and directed the payee to make the money. The notice was sufficient under Sec. 1, Chap. 132, Starr &.C. Illinois Stats. At the time of giving that notice the principal *was the owner of one tract of two hundred acres of land, worth between §5,200 and §6,000, and another tract worth §800, and personal property to the value of §600 to §800. The first tract was incumbered for §5,000 and the second for §800. A part of the incumbrance on the first tract was held by the mother of the principal in the note. About the time of giving the notice the appellant was about to purchase the two hundred acre tract from Martin C. Beck, the principal in the note, and did, on or about the 10th day of March, purchase that tract for §5,200, and there then being judgments against the principal, Martin C. Beck, to the amount of §1,028, those judgments were, with his and his mother’s consent, paid from the purchase money by appellant. Money was made on executions in the hands of constables against Martin C. Beck after the 10th of February, 1888. At the time of the notice the principal in the note was indebted, over and above the incumbrance on his land, about §2,000. From these facts thus appearing, was the surety on the note released by the failure to sue at an earlier day ? Did the payee sue in time? The notice to sue was received on the 13th day of February and suit not brought until the 20th of March following. This was not within a reasonable time, nor was it due diligence on the part of the payee. From the facts it further appears that after the receipt of notice there was money made on execution against the ] rincipal. It also appears that all judgments against the princ pal were paid out of the purchase money. " This was twen y-five days after the notice. .It might well be held that such facts appearing, a suit prosecuted to judgment on notice from appellant would have been paid by the principal.

The evidence shows sufficient facts to discharge the appellant as surety, and it was error to entér judgment against him. The judgment is reversed and the cause is remanded.

Reversed and remanded.