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mand, but not of notice, (f) the courts adopting, in this instance, the strict construction. But there is authority to the effect that a waiver of protest is a waiver of both demand and notice; (g) because the term “protest,” although, in its strict sense, appli
state of security, of which he might at any moment avail himself, after making the most of the credit thus acquired.”
(f) Wall o. Bry, 1 La. Ann. 312, where the writing was in these words: "We hereby waive protest, and acknowledge ourselves as fully bound for the within note, as if the same was legally protested." Bird o. Le Blanc, 6 id. 470, where the words were, “I hereby waive protest on the within note.”
(g) See Coddington v. Davis, 1 Comst. 186, 3 Denio, 16. The instrument was as follows : “ Please not protest T. B. Coddington's pote, &c., and I will waive the necessity of the protest thereof." There were other circumstances in the case, but Jewett, J., in the Supreme Court, expressly says that the writing was a sufficient waiver of notice, and the Court of Appeals founded their decision upon it. Gardiner, J. said : “ The terin 'protest,' in a strict technical sense, is not applicable to promissory notes.
The word, however, as I appr hend, has by general usage acquired a more extensive sig. nification, and, in a case like the present, includes all those acts which, by law, are necessary to charge an indorser. When among men of business a note is said to be protested, something more is understood than an official declaration of a notary. The expression would be used indifferently to indicate a series of acts necessary to convert a conditional into an absolute liability, whether those acts were performed by a mere clerk or a public officer. It is obvious that the word was used in its popular acceptation by the defendant below. He requests the indorsees 'not to protest the note, and that he would waive the necessity of protest thereof.' The protest to which the indorser alluded was something ‘ necessary' to be done; something also for the benefit of the indorser, for he assumed to waive it. It could not, therefore, be a memorandum, or a declaration made by a notary, because neither of them were required. Nor could he have intended to waive that which, whether performed or omitted, his right would in no manner be affected. The only things necessary on the part of the indorsees were, a demand of payment of the maker, and notice to the indorser. By waiving the necessity of protest, the defendant dispensed with both, or his communication is destitute of all meaning. It was argued, indeed, that the defendant might have referred to the notarial certificate authorized by statute. But this certificate is made prima facie evi. dence of a demand and notice in favor of the indorsees It is for their benefit. The defendant, in making such reference, must have supposed that the certificate was neces. sary evidence, because he waives the necessity of a protest which, according to the argument, is equivalent to dispensing with the necessity of a notarial certificate. Now to every fair mind waiver of proof necessary to establish a particular fact is equivalent to an agreement to admit it. Whether, therefore, the defendant, by waiving the necessity of a protest, intended to dispense with demand and notice, or with the evidence of them, the result would be the same; and in either case he is concluded by his own stipulation from raising the objection taken upon the trial I agree with the learned judge who delivered the opinion of the Supreme Court, that the circumstances attending the written stipulation of the defendant contirm this view ; but I prefer to rest my opinion upon the letter alone, as furnishing prima facie evidence of an intent, by the indorser, to waive demand of payment and notice, to which he was otherwise entitled.” See Scott v. Greer, 10 Penn. State, 103. In Duvall v. Farmers' Bank, 7 Gill & J. 44, 9 id. 31, the agreement was as follows: “Whereas I am indorser of three notes, &c., and whereas,
cable to a foreign bill alone, yet, in ordinary language, means the taking of such steps as the law requires to charge an indorser. We think this the better view, for several reasons ; because otherwise the agreement can have no meaning whatever; because there is no good reason why a written instrument, purporting to constitute a waiver, should be construed differently from other instruments; and from analogy to the cases respecting the form of notice, where, as has been seen,(h) the word 66
protest,” used with reference to a note, or an inland bill, by the weight of authority, means that the ordinary steps have been taken, with regard to the note, to charge the indorser. The words “eventually accountable,” (1) “holden,”(j) have
i( been said to imply a waiver of demand and notice. It has been said that the words “surety," or "security,'
“ placed after an indorser's name, is no waiver of demand and notice ; (k) but this may, we think, be doubted. A surety on a note has liabilities essentially distinct and separate from that as indorser; and unles the that the name of the indorser is written on the back of the note necessarily makes him an indorser, and nothing more, which is very doubtful, we do not
at my request, the bank which holds the said notes has agreed not to protest the same, or to ask a renewal of them when they become due, I do hereby agree to dispense with all notice of the time of payment, or of the non-payment of said notes, and to be answerable for the amount of said notes, although no such notice is given to me.” Held a waiver of demand and notice as to a note not due at the time the agreement
signed. (h) Supra, p. 471.
(i) Weston, C. J., McDonald o. Bailey, 14 Maine, 101 ; recognized by Shepley, J., Burnham v. Webster, 17 id. 50.
(j) Bean v. Arnold, 16 Maine, 251, where the note was overdue at the time of indorsement; Shepley, J., Burnham v. Webster, 17 id. 50; Blanchard v. Wood, 26 id. 358, where the note was not due at the time of indorsement.
(k) Bradford v. Corey, 5 Barb. 461, Paiye, J. said: “In this case, the addition of the word “surety' or security' to the indorsement of the defendants' names on the note in question did not divest them of their character of indorsers. The only effect of the addition of these words to their signatures was to give them the privileges of sureties, in addition to their rights as indorsers. As indorsers, they could not be made liable without a demand and notice; and as sureties, they were entitled to all the privileges of that character.” This is, however, only a dictum. It is somewhat difficult to see what is meant by a party who has all the rights of an indorser with all the privileges of a surety. Previous to being charged by demand and notice, an indorser is an indorser, and not a surety. After the proper steps have been taken, he vecomes a surety.
see wlig the effect of these words is not to make him a surety, and consequently not entitled to ordinary demand and notice. The word “ backer,” placed after the indorser's name, has also been held to be no waiver of demand and notice.()
In short, whatever words constitute a guaranty will be a waiver of regular demand and notice; because, as will be seen,(m) the ordinary rules with regard to demand and notice are inapplicable to guaranties. What form of words amounts to a guaranty will be considered subsequently.(n)
But although an instrument purporting to constitute a waiver is to be fairly construed, yet it cannot be extended beyond the import of its terms. Thus, a waiver of notice is not a waiver of demand.(o) because the two have meanings entirely distinct from one another, and it would be an unauthorized stretch of construction to declare them equivalent. We have seen that the words “eventually accountable” have been said to be a waiver of both demand and notice,(p) but where there are other words which limit and define these, the case may be different. Thus, “I hold myself accountable, and waive all notice," have been held to imply waiver of notice alone ;(9) because all the words taken together show such to be the intent. But an agreement
(l) Scabury o. Hungerford, 2 Hill, 80.
(0) Berkshire Bank v. Jones, 6 Mass. 524; Dewey, J., Low o. Howard, 11 Cush. 268, 270; Drinkwater v. Tebbetts, 17 Maine, 16, where the words were, Holden without notice”; Burnham o. Webster, id. 50, where the words were, “ I hold myself accountable, and waive all notice"; Lane o. Steward, 20 id. 98; Buchanan r. Marshall, 22 Vt. 561. See Backus v. Shipherd, 11 Wend. 629. Contra, Matthey o. Gally, 4 Calif. 62.
(p) Supra, p. 579.
(9) Burnham v. Webster, 17 Maine, 50, where Shepley, J. said : “In this case there is a waiver of notice, but not of presentment, unless the words, 'I hold myself account. able,' taken in connection with the other words used, can be considered as dispensing with a presentment. The inquiry is suggested, How accountable ? And the answer would secm necessarily to be, I waive all notice, and hold myself accountable. This answer e:oploys every word of the instrument, only transposed, and gives to each its proper meaning. To give a different answer to the question, and say, I hold myself accountable absolutely, would dispense with the words “and waive all notice,” giving to them no meaning. To answer, I waive all notice and demand, would be to give greater effect to the words than the decided cases permit. The indorser may say, 'I did indeed waive all notice, and held myself accountable, but I never did waive a presentment, and now insist upon it'; and the court cannot, consistently with the decided cases, deprive him of the right to make such an answer"
by an indorser to consider himself responsible without requiring notice, if the note could not be collected of the maker by due course of law, has been held a waiver of both demand and notice.(r)
Bills may be drawn “ acceptance waived." This does not deprive the instrument of its character as a negotiable bill of exchange, but its effect is simply to merge the ordinary proceedings on acceptance or non-acceptance into those of payment or non-payment.(s)
The waiver may be written upon the note or bill at the time of signing; or after that time and before maturity.(t) in which case no consideration is necessary, because the indorser would be estopped from setting up in defence a want of demand or of notice ; (u) or the agreement may be upon a separate paper,
(r) Backus o. Shipherd, 11 Wend. 629.
(s) See English v. Wall, 12 Rob. La. 132; in Denegre o. Milne, 10 La. Ann. 324, Slidell, C. J. said : We do not consider the expression 'acceptance waived,' as stripping the instrument of the character of a bill of exchange, or depriving its signers of the character and rights of drawers of a bill of exchange. These were merely qualifiel, and to this extent; the insertion of these words created between the drawers and the payee, and those subsequently taking the bill, an agreement that the drawees should not be required to accept the bill upon its sight. Without these words, it would have been the holder's right to insist upon an acceptance upon presentment, protest the bills if acceptance were refused, and take his immediate recourse against the drawers. With them, he had only the right to exhibit the bill for sight, to fix the date of maturity, which was done; and was bound to wait until maturity for payment by the drawees, at which time the drawers engaged it should be paid by the drawees. Upon failure of payment, protest, and notice, the liability of the drawers, which was previ. ously conditional, would, in general, become absolute. No adjudged case militating with this view of the rights of those parties has been referred to or cited; and we are satisfied that the construction we give would be in accordance with the understanding of men of business, and meets the understanding of the parties themselves when the bill was drawn and negotiated. The validity of the instrument as a bill of exchange, its essential character as a bill of exchange, are not destroyed by such a qualification. [t is still a request to the drawee by the drawer, to pay a sum of money to the payee, or his order, absolutely, and at a time mentioned in the bill.”
(t) Wall v. Bry, 1 La. Ann. 312.
(u) In Wall 0. Bry, 1 La. Ann. 312, Slidell, J. said: “It is proved that the indorsement of the defendant was made some months anterior to the indorsement and signatare of the waivers. The defendant urges that it was not binding, because made without consideration. The plea that the waiver was without consideration cannot avail the defendant. It was made before the maturity of the note; the holder may have regulated his conduct, in not protesting the note, by the defendant's waiver, confiding in it; and to relieve him from it now would be sanctioning a breach of good faith, and perjitting that party to gain by his own disingenuousness."
contemporaneous with, or subsequent to, the indorsement,(v) or even before the note is indorsed.(w)
2. When the Waiver is inferred from Acts of the Indorser or
Drawer. Demand and notice may be waived by an act of the indorser or drawer, calculated to put the holder off his guard, and prevent him from treating the note as he would otherwise have done.(2) Or where the indorser or drawer has himself been the
x means of preventing the note or bill from being honored.(y) Thus, when the indorser received a written agreement from the holder, in which the latter promised to sue the makers, and to use all due diligence to collect the note from them, demand and notice were held to be waived.(z) Also, where the indorser, by agreement with the holder, agreed to extend the time of payment.(a) Or where such agreement, for a valuable considera
(v) Spencer o. Harvey, 17 Wend. 489, where the indorser wrote to the holder a few days before maturity, stating that the maker had failed, acknowledging his liability, and asking an indulgence until funds could be realized from security given by the maker. Held a waiver of demand and notice. Coddington o. Davis, 1 Comst. 186, 3 Denio, 16; Duvall d. Farmers' Bank, 7 Gill & J. 44, 9 id. 31.
(w) See Union Bank o. Hyde, 6 Wheat. 572. For the words of this agreement, see supra, p. 576, note e. The case does not, however, state whether the instrument was signed before the note in suit was indorsed. See also Duvall 0. Farmers' Bank, 7 Gill & J. 44, 9 id. 31, where there was one note not indorsed until after the agreement.
(x) Govo o. Vining, 7 Met. 212; Spencer v. Harvey, 17 Wend. 489 ; Bruce v. Lytle, 13 Barb. 163; Taylor v. French, 4 E. D. Smith, 458; Phipson o. Kneller, 1 Stark. 116.
(y) Minturn o. Fisher, 7 Calif. 573.
(z) Kyle v. Green, 14 Ohio, 490. In Benoist v. Creditors, 18 La. 522, the drawer took a receipt from the payee, in which it was agreed that the bill should not be protested, in order to save costs. The funds for wbich the bill was drawn were then in litigation. Held that notice to the drawer was not necessary.
(a) Amoskeag Bank v. Moore, 37 N. H. 539, where the indorser, a few days before maturity, signed the following agreement at the foot of the note : “Sept. 25, 1855. We hereby agree that the above note may be extended for sixty days from this date." On the 25th of September the makers paid the plaintiff the interest in advance for the sixty days, which was indorsed on the note as interest paid for that time. No demand was made upon the makers, either at maturity or at the expiration of the extended time. Notice had been expressly waived. The defendant was held. In Ridgway r. Day, 13 Penn. State, 208, the plaintiff wrote to the defendant before maturity, informing him that the maker could not probably pay, and offering to extend the time of payinent. The defendant agreed, and wrote, in reply, that he was “ willing to extend the time for thirty days longer, and of course will stand responsible for the payinent of the note as originally intended.” One or two further extensions were made. Held a waiver of all demand and notice. See also the cases cited infra.