Heralson v. Mason
Supreme Court of Missouri
Appeal from Greene Circuit Court. . I. The condition to be performed was not a condition precedent. (4 Kent, 125 and note (1); Boone vs. Eyre, 1 H. Black, 254; 1 Ch. PL, 323; 10 East, 295, 556, 563; McCullough vs. Cox, 6 Barb., 387; 2 Pars. Cont., (5th Ed.), 527. See also, 6 Mo., 392; 7 Mo., 462; 36 Id., 439; 7 Johns., 249.) II.
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Appeal from Greene Circuit Court. . I. The condition to be performed was not a condition precedent. (4 Kent, 125 and note (1); Boone vs. Eyre, 1 H. Black, 254; 1 Ch. PL, 323; 10 East, 295, 556, 563; McCullough vs. Cox, 6 Barb., 387; 2 Pars. Cont., (5th Ed.), 527. See also, 6 Mo., 392; 7 Mo., 462; 36 Id., 439; 7 Johns., 249.) II. If, by the terms of contract, it has been necessary in any court to sue the principal first, the allegation of insolvency in the petition, was a good excuse for the failure to sue. (See 3 Johns., 598.) The appellant cannot recover in this action, until he shall have “…
1Opinion of the CourtWagner, Judge
This was a suit instituted against the sureties upon a bond or written obligation for the payment to the plaintiff of the sum of six hundred dollars. The bond was executed upon the condition that the holder or obligee should not prosecute any suit or action at law against the sureties, until he had exhausted all legal means to collect the same from the principal, or his legal representatives. No suit or action at law was commenced or prosecuted against the principal prior to the institution of this proceeding, but as an excuse or reason why such action had not been commenced, it was averred…
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