delivered the opinion of the Court:
The third plea to the first count of plaintiff’s declaration was held bad on demurrer. It averred that when the note fell due the maker was solvent, but plaintiff had failed to institute a suit for its collection. This plea does not answer or traverse all of the material allegations of the count, and does not, therefore, amount to the general issue. It was no doubt intended for a special traverse of a material allegation of the count, and if it traverses such an allegation it would be a good plea. The allegation in the count was, that the maker of the note was insolvent when the note fell due, and continued so until this suit was instituted, and a suit on the note would have been unavailing. The plea only avers that he was solvent at the maturity of the note, and does not allege that he continued so until a suit could have been made availing. The averment of the plea is not sufficiently broad to traverse this allegation. It could make no difference if the maker was solvent at the maturity of the note, if he did not continue so until a suit could have been made availing. The right of recovery is based upon the averment that a suit against the maker would have been unavailing, and the maker may have been solvent on the day the note fell due, and he may have become insolvent before a recovery could have been had.
It is insisted that the evidence fails to sustain the verdict, and that the court below erred in overruling the motion for a new trial. The evidence appears to have been somewhat conflicting, and not of the most conclusive character. It was the province of the jury to weigh and give to it all the consideration to which it was entitled. And their opportunity for estimating its true character was superior to ours, and we do not feel inclined to interfere unless there was a want of evidence to support the verdict. We are not prepared to say that it is not supported by the evidence.
Exception is taken to the instruction given by the court, that if the institution of a suit would have been unavailing to collect the entire debt, then the plaintiff had the right to recover. This was announced in several of plaintiff’s instructions. And the same rule is announced in a modification to defendant’s first instruction, when the jury are informed, that the allegation in plaintiff’s declaration, that no part of the note could have been collected of the maker, need-not-be proved, as it presented an immaterial issue, which might be rejected as surplusage. These instructions present the question, whether, under our statute, a suit is unavailing, which would result in the collection only of a part of the note.
When it appears that the maker had no property liable to execution, it is manifest that a suit would be unavailing. But when it appears that a large portion of the note could have been realized by suit, can it be said that a suit would have been unavailing % It is true that it would be unavailing as to the full amount of the note, but it would not be wholly unavailing; it would at least be availing in part. The statute provides for due diligence by suit, but in the proviso, authorizes a recovery against the assignor, in ease the institution of such suit would have been unavailing. The word “ unavailing ” evidently means without use, profit, or advantage. This is the popular meaning of the word, and it seems to have been employed in that sense. It would, therefore, seem to follow, that the true inquiry should be, whether the institution of a suit would have been of use or advantage. Hot whether it would have been of the very highest use or advantage. If a sum could not have been realized beyond the expense, then it would not be necessary, as the law never requires the performance of an useless act. But if it appears that a portion of the note could have been made to be useful and advantageous, although not a sufficient sum to pay the entire debt, the suit would- not have been unavailing.
If the assignee had relied upon diligence by suit, and a portion only of the note had been collected, it is manifest that he could only recover the balance remaining unpaid. When the note has been assigned and delivered to the holder, he thereby becomes its owner, and has the sole power of controlling it so long as he remains the owner. During that time the assignor is powerless to institute any proceedings to subject the property of the maker to the payment of any portion of the note. If the assignee will not sue, the portion that might be realized, would be liable to be lost. When it is remembered that the law requires of the assignee a high degree of diligence before he can resort to the assignor to pay the note, it is reasonable to require the assignee to avail himself of every means which the ordinary process of the law affords to make the money, or any portion of it that would be advantageous to himself or the assignor.
If only a portion of the note could have been made by a resort to legal proceedings, and the assignee fails to use them for the purpose, he, and not the assignor, should sustain the loss. But as he would have the right to' recover any balance which could not be collected after resorting to legal proceedings, so, he should be permitted to recover the portion of the debt beyond what he might have made had he instituted a suit. This is reasonable, fair and every way just, and seems to be the spirit of the statute. In so far as the instructions conflict with these views the court erred in giving them, and the judgment must be reversed, and the cause remanded.
Judgment reversed.