tion of the proceeds of the sale. The condition was therefore a concession to the purchaser, the legal effect of which would be that after the purchase money was paid in full, if any remained, it should be accounted for by the seller to the buyer. This mode of dealing seems inconsistent with the relation of seller and buyer, and would be so in cases not controlled by special contract. The reason why the title to the property did not pass, was that it was agreed that it should not, and that no subsequent agreement or condition between the parties was made or assented to that waived this condition. [To appear in 41 Ohio St.] Judgment affirmed. NOTICE BY SURETY TO CREDITOR-WAIVER-PLEADING. 1. The notice required by Sec. 5833 Rev. Stats., in order to be available to a surety, must be in writing and require the creditor to cominence an action forthwith on the obligation in which the surety is bound. No particular form or words are required. A substantial compliance with the statute is sufficient. 2. The requirement that the notice shall be in writing confers a personal privilege on the creditor, which he may waive. 3. The executors of a deceased surety gave a written request to the creditor to commence an action forthwith on a note in which the decedent was bound as surety. The creditor held two notes in which the decedent was so bound, for the same principal, to which the notice would apply indifferently. Thereupon the creditor went to the executors, and exhibiting the notes said he accepted the notice as applicable to both. The executors explained the danger of delay and urged him to sue at once. He promised to commence forthwith, and without further notice, an action against the principal on both notes, and collect them with due diligence. In an action against the executors, they by answer set up this arrangement and the creditor's failure to comply. Held. The arrangement was a valid parol substitute for a formal notice, and the answer was a good defense. ERROR to the District Court of Coshocton County. Osborn sued one McKee and the executors of William Clark before a justice of the peace of Coshocton county. Mc Kee was not served with summons. The suit was on two promissory notes made by McKee and the decedent, who was surety thereon. Judgment passed and the case was appealed to the common pleas. In the common pleas a demurrer to the second count of the answer was overruled. And an issue joined by that count and reply was tried to a jury. Verdict for the executors, and judgment accordingly. On error to the district court judgment was reversed for error in overruling the demurrer. The case is here on error to reverse the judgment of the district court. The question is: Is that count good in law? It reads as follows: "Second. The said defendants, Samuel B. Clark and Hannah B. Clark, as executors as aforesaid, for a second defense to the petition of plaintiff, and to the two alleged causes of action therein contained, say, that the said defendant, Alexander McKee, was the principal maker of the two promissory notes described in plaintiffs' petition, and that said William Clark, deceased, signed said notes merely as the surety of the said McKee, and received no part of the consideration for which said notes were given, all of which was well known to plaintiff at the time said notes were delivered to him. That after the appointment of these defendants as executors as aforesaid, and after a right of action had accrued to plaintiff on said notes, and on the twenty-first day of January, A. D. 1878, they, the said Samuel B. Clark and Hannah B. Clark, as executors as aforesaid, served upon the plaintiff a notice in writing, requiring plaintiff forthwith to commence an action against said Alexander McKee, on said promissory notes, a copy of which notice is hereto attached, marked "exhibit A" and made a part of this answer. These defendants say that at the time of serving said notice on said plaintiff, they supposed and believed that the whole indebtedness of said Alexander McKee to plaintiff, and for which said William Clark, deceased, was surety, was all embraced in one promissory note, and had no knowledge that plaintiff held two notes of said McKee, upon which said William Clark, deceased, was surety, until after said notice had been served as aforesaid; and these defendants say that on the twenty-second day of January, A. D. 1878, after said notice had been served as aforesaid, said plaintiff came to said defendant, Samuel B. Clark, and exhibited to him said two notes in the petition described, when these defendants learned for the first time that said indebtedness of said McKee to plaintiff was embraced in two promissory notes; and these defendants further say, that at the time plaintiff exhibited said notes to said Samuel B. Clark as aforesaid, he then stated to these defendants, that although said notice, in terms, mentioned but one note, yet he accepted said notice as applicable to both of said notes, that he understood it to comprehend both of said notes, and would proceed accordingly to commence an action forthwith against said McKee, on both of said notes, and to collect the same in the ordinary course of law, with due diligence, without further notice from these defendants; these defendants further say that after the service of said notice on plaintiff as aforesaid, and after he accepted the same as applicable to both of said notes as aforesaid, he did not proceed with due diligence in the ordinary course of law to recover judgment against said Alexander McKee, for or by execution to make the amount of money or any part thereof, due by said promissory notes, or either of them, but they say that said plaintiff neglected and failed to recover a judgment on said notes against said McKee, although at the time of the service of said notice as aforesaid, and for twenty days and more thereafter, said McKee was a resident of said township of Bethlehem, and during which time was entirely solvent, had property both real and personal, subject to execution, amply sufficient to have fully paid a judgment for the amount due on both of said, notes and costs of suit, all of which was well known to plaintiff during all of said time. These defendants further say, that at the time plaintiff exhibited said notes to said Samuel B. Clark as aforesaid, he, the said Samuel B. Clark then notified plaintiff that there was danger that said McKee would dispose of his property within a short time, then urged plaintiff not to delay, but to proceed at once to make off said McKee by suit and legal process, the amount due on said notes, and these defendants say, that sometime thereafter said McKee did commence disposing of his property, and continued to dispose of and convert his property into money until he had nothing left subject to execution, and that plaintiff had full knowledge of the same during the time it was being done by said McKee, and although he had ample time and opportunity before said property was so disposed of as aforesaid, and after said notice had been served on him as aforesaid; to have collected the amount due on said notes by legal process, vet he neglected so to do. Wherefore and from all the premises these defendants ask to be released from any judgment in the premises against them." "Exhibit A" referred to in answer: "To TRUMAN OSBORN, Coshocton, Ohio, January 21, 1878. SIR-You are hereby requested to commence an action forthwith, against Alexander McKee, on a promissory note which you now hold against said Alexander McKee, and signed by said McKee, and also signed by one William Clark, now deceased. Said McKee is principal debtor in said note, and said Clark was at the time of his death bound as surety." HANNAH B. CLARK, S. B. CLARK, Executors of said William Clark, deceased. John T. Simmons and Nicholas & James, for plaintiffs in error. Spangler & Pomerene, for defendant in error. MARTIN, J. We are to inquire as to the sufficiency of the notice to sue in the circumstances stated in the answer. It is claimed that the notice was given to secure the benefits of section 5833, Rev. Stats., which reads: "Any person bound as surety in a written instrument, for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless such creditor commence such action within a reasonable time thereafter, etc. * * The creditor or assignee of such instrument so failing to comply with the requisition of such surety, shall thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due thereon." Section 5834 provides that the executors or administrators of a surety may serve such notice with like effect. The notice authorized by this section is simple in its elements. It is to be: First, in writing; second, a requirement to sue the principal forthwith; and, inferentially; third, a sufficient description or indication of the instrument. The written notice given by the executors is defective for want of the last requisite. And it is claimed it is defective also because it is a request and not mandatory in its terms. The statute does not require the use of any particular words; but the notice to be effectual must embrace the enumerated particulars. Doubtless the use of the word request instead of the word require, or any of its synonyms, would not vitiate a notice if the context showed it to be peremptory and adversary. The defense set up in the answer is not based on the written notice. It consists of a series of facts, one of which is service of the defective notice. The complete statement discloses a waiver of written notice and an express acceptance of verbal notice. It recites, in substance, that Osborn in fact held two notes against McKee, in which the decedent was bound as surety, and to which the notice would apply indifferently. That he thereupon went to the executors, and exhibiting the notes said that he accepted the notice as applicable to both. The executors then explained to him the danger of delay and urged him to sue at once. And he then promised that he would, without further notice, commence an action forthwith against McKee on both notes and collect the same with due diligence. In our opinion the arrangement thus made was a valid parol substitute for a formal notice. If the creditor had remained silent or refrained from stipulations as to his duty, the written notice would have to be tested by its words alone. But a valid notice may be withdrawn or a defective notice confirmed by consent of the proper party. And the question is as to the meaning and effect of the arrangement set forth in the plea. We think it that both parties understood at the time that the written request was a direction made in the assertion of a right and not merely a |