[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488 The finding of the trial court is conclusive upon the issue of a usurious contract. The testimony was conflicting; and that as to the lack of knowledge and intent upon the part of the plaintiff so positive that the finding is sustained.
The testimony is also conflicting as to the notice to foreclose. The additional findings, however, sustain the claim of the defendant, that he told the plaintiff to "collect that mortgage in the spring, and not to let it run over the time it is due." That saying was in January or February, 1875. The trial court *Page 489 found that it did not give notice, sufficient or otherwise, to plaintiff to discharge Field from his liability, even if there had been negligence on the part of the plaintiff in enforcing the collection; and it refused to find that the plaintiff was guilty of such negligence. On these findings and refusals to find, the defendant does not establish a defense. Even if a sufficient notice had been given, and not observed by the plaintiff, the defendant Field would not have been relieved of liability, unless the failure of the plaintiff to observe the notice had resulted in injury to the defendant; and it could have so resulted only in one way. If when the notice was given, the plaintiff could lawfully have put the bond and mortgage in force and then have collected thereby more than he can now collect thereon in this action, the defendant would be harmed. The plaintiff could not have then collected more on the bond, unless the plaintiff was then solvent and is now insolvent, or unless the mortgaged premises would then have brought more at judicial sale than now. Now the testimony does not make it clear that the mortgagor was then more solvent and able to pay than now. There was an attempt to show it; but the testimony is such that we cannot say that there was not evidence to sustain the finding made, that Purdy, at the time when the mortgage could first have been enforced by legal proceedings, was hopelessly insolvent, and has so remained. Nor does the testimony show that a judicial sale would have then brought more than it now will. There is no finding made or asked to that effect. There is testimony that when the notice was given, the lands were not worth the mortgage; and there is testimony that at a time after that and before the commencement of the action, it was worse in that regard. But there is no testimony of how it was in that respect at the time of the trial, or when the answer was put in. Nor is there testimony at all to show the extent of the depreciation of the lands in value, nor how much, if any thing, the defendant should be relieved from liability. So that the trial court might well find that the plaintiff was not chargeable with negligence productive of damage to the defendant. The burden was upon the defendant to show solvency *Page 490 of Purdy at the time of the notice, and insolvency of him after the bond was capable of being sued.
But there is a more radical reason why the defendant has not established the defense. The doctrine that a surety may give the creditor notice to proceed against the principal, and if the latter refuses to the damage of the surety, the obligation of the surety is discharged or diminished, is not a favorite in the law, and is not accepted in all forums. (3 Kent's Comm. *124, notec.) It was against opposition that it was adopted into the law of this State. (See King v. Baldwin, 17 Johns. 384, 390, 396, 397, 402; Colgrove v. Tallman, 67 N.Y. 95, 99.) It is not one that is to be applied with laxity. It is certainly to be required that the surety shall deal fairly and plainly with the creditor, and shall give him to know that he intends to put him upon his equitable duty. In my judgment, the terms of his notice should be such, as that the creditor can know from them, that he is called upon by it to choose between a diligent pursuit of the principal debtor, or a reliance upon that debtor alone for ultimate satisfaction of the debt. It is not needed that we hold that much in this case. But we may hold that the notice to the creditor should clearly inform him that he is required to take proceedings in the courts to enforce the mortgage. (Singer v. Troutman, 49 Barb. 182; citing Remsen v. Beekman, 25 N.Y. 552; see, also, the language of SPENCER, Ch. J., in 17 Johns., supra, at page *394.) We infer that the finding of the trial court, that the defendant did not give notice sufficient or otherwise to plaintiff, in order to release said Field, has in it the idea above put forth. The notice was given in January or February, 1875. There was nothing due and payable, by the condition of the bond, until the 23d day of May of that year. The plaintiff might well have understood the defendant to mean that when the bond became payable, payment should be asked for; he was not forced by the words used, at the time when they were used, to understand that collection by legal proceedings was meant. The words of the notice do not convey only the idea of a collection enforced by action, as in 25 N.Y. (supra.) They do not convey, of necessity, *Page 491 given at the time when it was, that the plaintiff was required to seek the aid of the courts.
For these reasons, we think that the judgment should be affirmed.
All concur.
Judgment affirmed.