Kritzer v. Mills

<p>Appeal from the District Court of the Fifth Judicial District.</p> <p>This was a suit commenced on the following promissory note:</p> <p>“ Three months after date, I promise to pay to John Kritzer the sum of five hundred dollars, with interest, at two per cent, per month, from date. Value received.</p> <p>(Signed.) “John Mills.</p> <p>“David Coun.</p> <p>“ Shaw’s Elat, October 8, 1856.”</p> <p>The defendant Coun, in his answer, admits the execution of the note, but alleges that he signed it as surety, and that plaintiff knew that fact at the time of the execution of the note. He also avers that he was entitled to notice of the non-payment, and that plaintiff did not use diligence, etc., to collect the note from defendant Mills.</p> <p>On the trial, the defendant Coun offered parol evidence to prove the facts set up in his answer, and the Court allowed the same to go to the jury.</p> <p>The Court instructed the jury as follows : “ If the jury believe from the testimony that defendant Coun executed the note as security, and for the accommodation of defendant Mills; and that the plaintiff, Kritzer, knew the same at the time of execution, and that defendant Coun did not have due notice of demand and non-payment, they must find for the defendant.” To which instruction, plaintiff excepted.</p>