« AnteriorContinuar »
With reference to the question whether a particular conversation amounts to a waiver, no general rule can be laid down, except that the words used must be such as fairly to lead a reasonable man to suppose that the indorser did not wish that the regular course in making a demand and giving notice should be pursued; or such as would be calculated to prevent him from so doing. But, on the other hand, the language must not be so vague, uncertain, and loose as to raise a reasonable doubt as to what was intended.(h) It will be seen that there is a marked
presented the day after maturity, and the drawer was discharged. Lord Ellenborough said: “ The evidence shows that it was not likely that the drawees would accept the bill, but it was possible that they might change their minds.” It would seem somewhat difficult to reconcile this case with that cited supru, p 589, note r, and there is certainly ground to contend that there was evidence from which a jury might infer a waiver, on the ground that the drawer had, to use the language of the same judge in that case, “ taken upon himself the onus of making inquiry.” So in Cayuga Co. Bank v. Dill, 5 Hill, 404, the indorser called at the bank on the day of maturity, and after observing that the note had come round, asked if it could not be renewed on pay. ment of $ 100, and discount. He said that the maker was absent, and that the note would have to lie over until his return. The cashier expressed a willingness to renew the note upon the terms proposed, if the defendant could do no better. On leaving the bank, the defendant told one of the directors the conversation with the cashier, adding that the $ 100 dollars should be paid and the note renewed on the maker's re
The director assented to the renewal, and told the cashier to let the note lie. By mistake of one of the clerks, the note was not protested until three days afterwards. On the day of protest the indorser called at the bank and inquired why the mte had not been protested. He was told that it would be protested in the afternoon, whereupon he replied that it was too late, and refused to indorse a new note. No notice was sent. The judge at Nisi Prius refused to nonsuit the plaintiff, at the defendant's request, and charged that, under the circumstances, the plaintiff was entitled to a verdict. The verdict was set aside and a new trial granted, Cowen, J., dissenting. Velson, C. J. founded his opinion on the ground that the omission to protest and to give notice arose, not from the conversations, but from the negligence of the clerk; and that the words used were too loose and uncertain to constitute a waiver. Cowen, J. was of opinion that the conversation was fully sufficient to amount to a waiver, that it was unreasonable for the defendant, under the circumstances, to object to want of demand and notice. As to the conversation, the opinion of Cowen, J. is clearly the better. And as to the effect of the want of protest being caused by the clerk's negligence, it may be observed, that this appears contrary to the case of Boyd v. Cleveland, 4 Pick. 525, supra, p. 585, note ;, where notice was held waived, although the holder made an unsuccessful attempt to notify the indorser. It may also be answered, that the question is not whether the holder was actually misled, but whether, under the circumstances, a reasonably prudent man might not consider that the indorser hall waived the necessity of notice. So also if no protest at all had been made, or no attempt to protest, the indorsor would probally have been held. It might be difficult, then, to see why an attempt to do that which a party was not bound to do should deprive him of a right to which he would be entitled in case no such attempt had been made.
(h) See Cayuga Co. Bank o. Dill, 5 Hill, 404 ; Prideaux o. Collier, 2 Stark. 57. In Vol. 1.—2 N
difference between the waiver before and after maturity, as regards the question what words will amount to a waiver, for the obvious reason that, in the former case, the holder may be misled, and prevented from presenting and giving notice, while, in the latter, no such circumstance can occur.(i)
4. Where the Waiver occurs after Maturity. The expression, “waiver of demand and notice after matilrity," though often used, is somewhat inaccurate. Properly speaking, demand and notice can only be waived before maturity ; but the party may, by words or acts subsequent to that time, relieve the plaintiff from the necessity of proving demand and notice, or render the fact that no demand was made or notice given entirely immaterial.(i) The subject of taking security before maturity, with reference to the bearing upon waiver, has already been discussed, (k) and it has been seen that the authorities are somewhat in conflict. But it seems to be well
Gregory v. Allen, Mart. & Y. 74, the note was indorsed when overdue. By agreement between the indorser and indorsee, the latter was not to make any demand until the following May, when the maker was expected to return The latter returned in July, after the commencement of the suit. No demand or notice was proved. A witness testified, that, a few weeks before the suit, he was present at a conversation between the plaintiff and defendant; that he told them that he expected to go to the place where the maker then was in about a week. They agreed to send the note by him for collection. Plaintiff then asked the defendant if he would be accountable for the amount of the note if he, the plaintiff, would wait until the witness returned. The defendant replied, that he felt himself bound for the note as they had agreed. The understanding of the witness was, that, if he carried the note and failed to get the money, the defendant was to be accountable for it, not otherwise. The witness did not take the trip, and the note was never sent, so far as he knew. A verdict for the plaintiff was set aside, as against evidence, or unsupported by any. Crabl, J. said: “The well-settled rule of law is, that, to show a waiver of demand and notice, there must be clear and unequivocal evidence.” That is perhaps stating the rule 100 strictly, as regards a waiver before maturity. An agreement by the drawer and indorser of a bill with the holder, · before the bill became due, that the holder should take any security, or make any arrangement he thought proper to secure payment, without affecting their liabilities, does not dispense with the necessity of demand and notice. Bank v. Spell, 2 Hill, S. Car. 366.
(i) Story on Prom. Notes, $ 280 ; Scott, J., Lary v. Young, 8 Eng. Ark. 401.
(, ;) In Hoadley v. Bliss, 9 Ga. 303, Visbet, J. said: “ The presiding judge held that the indorser could waive demand and notice before the note fell due, and it is excepted that this was an error. He could waive demand and notice at no other time. It is true that he may, after it is due, waive his right to except to his liability, that is, waivo proof of demand and notice, and the presiding judge held nothing to the contrary of this."
ík) Supra, pp. 576 – 592.
settled, that taking security after maturity is no waiver, because the reasons for considering security as a waiver do not apply.(1)
Although there is great fluctuation and uncertainty in the cases connected with this subject, yet the general principle seems now to be settled, in this country, at least, and by the earlier decisions in England, that, where no demand has been made or notice given, a promise to pay, after maturity, made with full knowledge of laches, is binding on the party promising; and removes entirely the effect of any negligence in making the demand or in giving the notice.(m) The cases, however, are
(1) Tower v. Durell, 9 Mass. 332, where the indorser had taken an assignment from the maker, after maturity, of a suit then pending, and had also received part of the rent of a house. Held no waiver of demand. Creamer o. Perry, 17 Pick. 332. In this case, demand on the maker was made the day after maturity, and the indorser was notified a few days after. There were two assignments, one before and the other after maturity. The case does not disclose what the terms of the second assignment were. Shuw, C. J. said : “ The second assignment does not affect the question; it does not appear to have been made till several days after the note became due." Otsego Co. Bank 0. Warren, 18 Barb. 290. In this case, the plaintiff offered to prove that the defendant, the second indorser of a bill, took an assignment from the first indorser to secure the former for all his liabilities for the drawers, and that the property assigned was sufficient to cover the whole liability, including the draft in suit. Held, that the evi. dence was properly excluded. Bacon, J. said : If there has been no due presentment or notice of dishonor, and the indorser, after the maturity of the note, even supposing himself liable to pay the same, takes security from the maker, that will not amount to a waiver of the objection of want of due presentment or notice ; since it cannot justly be inferred that he intends at all events to make himself liable for the payment of the note, but he takes the security merely contingently, in case of his ultimate liability.” See Burrows o. Hannegan, 1 McLean, 309; Richter o. Selin, & S. & R. 425, 439. An agreement subsequent to maturity, to put into the hands of the holder certain merchandise, is no waiver. Carter v. Burley, 9 N. H. 558. But it was held equivalent to a promise to pay, and as the indorser must have known whether he had received notice or not, such an agreement was held sufficient evidence of waiver in Debuys v. Mol. lere, 15 Mart. La. 318.
(in) Sigerson v. Mathews, 20 How. 496, where the judge, at Nisi Prius, charged the jury, that if, “after the maturity of the note, the defendant promised the plaintiff or his agent to pay the same, having at the time of making said promise knowledge of the fact that the note had not been presented for payment, and that no demand had been made therefor, or notice of non-payment given, the defendant cannot now set up, as a defence to said note, a want of such demand or notice” Held correct. See Reynolds v Douglass, 12 Pet. 497, 505 ; Thornton v. Wynn, 12 Wheat. 183 ; Read v. Wilkinson, 2 Wash. C. C. 514; Martin v. Winslow, 2 Mason, 241; Creamer v. Perry, 17 Pick. 332 ; Hopkins v. Liswell, 12 Mass. 52; Byram v. Hunter, 36 Maine, 217 ; Hunt v. Wadleigh, 26 id. 271; Davis v. Gowen, 17 id. 387 ; Cram v. Sherburne, 14 id. 48; Groton o. Dallheim, 6 Greenl. 476 ; Edwards v. Tandy, 36 N. H. 540; Rogers v. Hackett, 1 Foster, 100 ; Parker, C. J., Merrimack Co. Bank v. Brown, 12 N. H. 320, 325
Woodman v. Eastman, 10 id. 359; Whitney v. Abbot, 5 id. 378 ; Otis v.
somewhat strict in their requirements, as they should be. In the first place, there should be clear and distinct evidence of the promise. (n) The following are instances in which it was held that the promise was sufficiently made out. Where the indorser of a note said to the plaintiff's agent, on being asked what to do, that in a few days he would see the agent and arrange the note; (o) a declaration by the indorser, that when he returned he would set matters to rights ;() an acknowledgment of the debt by the drawer, with a promise to send funds with which to take
Hussey, 3 id. 346 ; Hosmer, C. J., Breed ». Hillhouse, 7 Conn. 523, 528; Brooklyn Bank v. Waring, 2 Sandf. Ch. 1 ; Bruce v. Lytle, 13 Barb. 163; Tebbetts v Dowd, 23 Wend. 379 ; Leonard o. Gary, 10 id. 504 ; Jones v. Savage, 6 id. 658 ; Trimble o. Thorne, 16 Johns. 152; Griffin v. Goff, 12 Johns. 423 ; Miller v. Hackley, 5 id. 375; Duryee o. Dennison, id. 248; Strong, J., Sherer 0. Easton Bank, 33 Penn State, 134, 141; Donaldson o. Means, 4 Dall. 109; Sussex Bank v. Baldwin, 2 Harrison, 487; U. S. Bank v. Southard, id. 473; Barkalow v. Johnson, 1 id. 397 ; Beck v. Thomp. son, 4 Harris & J. 531 ; Higgins v. Morrison, 4 Dana, 100; Pate v. M'Clure, 4 Rand Va. 164; Walker o. Laverty, 6 Munf. 487; Moore o Tucker, 3 Ired. 347; Gardi ner v. Jones, 2 Murph. 429; Johnson. J, Allwood v. Haseldon, 2 Bailey, 457 ; Hall 13. Freeman, 2 Nott & McC. 479 ; Spurlock v. Union Bank, 4 Humph. 336 ; Durham v. Price, 5 Yerg. 300 ; Sherrod v. Rhodes, 5 Ala. 683; Kennon v. M'Rea, 7 Port. Ala. 175, where it was held that the promise might be made after suit brought; Harvey v. Troupe, 23 Missis. 538; Oglesby v. Steamboat, 10 La. Ann. 117, where the promise was made after the commencement of the suit ; New Orleans Bank v. Harper, 12 Rob. La. 231; Lacoste v. Harper, 3 La. Ann. 385 ; Glenn ~. Thistle, 1 Rob. La 572; Hart o. Long, id. 83, where the plaintiff had been nonsuited for want of proof of demand at the place where the note was payable, and the indorser promised to pay while a motion for a new trial was pending, the plaintiff's attorney having explained to him the reason of the nonsuit; Union Bank v. Grimshaw, 15 La. 321; Bank of U. S. v. Ellis, 13 id. 368; Williams v. Robinson, id. 419; Debuys v. Mollere, 15 Mart. La. 318 Walker v. Walker, 2 Eng. Ark 542; Dorsey o. Watson, 14 Misso 59; Wilson o. Huston, 13 id. 146 ; Pratte o. Hanly, 1 id. 35 ; Whitaker v. Morrison, 1 Fla 25 ; Shurkry, C. J., Robbins o. Pinckard, 5 Smedes & M. 51, 70. The following English cases are authorities to the same point. Whitaker v. Morris, Esp. N. P. 58; Anson v. Bailey, Bull. N. P. 276 ; Wilkes v. Jacks, Peake, 202; Rogers v. Stevens, 2 T. R. 713; Hopes v. Alder, 6 East, 16, note; Lundie v. Robertson, 7 East, 231, 3 J. P Smith, 225; Haddock v. Bury, 7 East, 236, note; Stevens o. Lynch, 12 id 38, 2 Camp. 332 ; Bayley, J., Brett v. Levett, 13 East, 213; Potter v. Rayworth, id. 417; Hopley r. Dufresne, 15 East, 275 ; Taylor v. Jones, 2 Camp. 105; Patterson v. Becher, 6 J. B. Moore, 319; Vaughan, B., Pickin v. Graham, I Cromp. & M. 725, 729; Fletcher v. Froggatt, 2 Car. & P. 569; Houlditch v Cauty, 4 Bing. N. C. 411; Mills v. Gibson, 16 Law J., C. P. 249.
(n) Mansfield, C. J., Borradaile v. Lowe, 4 Taunt. 93 ; Vaughan, B., Pickin v. Graham, 1 Cromp. & M. 725, 728; Spencer, J., Griffin v. Goff, 12 Johns. 427; Duncan, J., Richter v. Selin, 8 S. & R. 425, 438. See Whitaker v. Morrison, i Fla. 25.
(0) Sigerson n. Mathews, 20 How. 496. McLean, J. said: “ This was an unconditional promise to pay the note, which no one could misunderstand, and which the defendant could not repudiate at any subsequent period.”
(p) Anson o. Bailey, Bull. N. P. 276.
up the bill ;(9) a request by the indorser, when called on for payment, for delay, with a promise to pay in a few days; (r) a promise to the holder, that the drawer would arrange with the drawee, so that the draft should be paid ; (s) a promise by the drawer, that he would see the bill paid ; (t) a request by the in dorser to the holder to sue the maker, with a promise to pay,
if the note could not be collected of the latter ;(u) a promise by the indorser to pay the note as soon as he could, with a statement that he doubted whether he should be able to do it under eight months, but that he should have the amount by that time ;(L') an agreement of the indorser of a note to consider the demand as made in due time, and himself liable as indorser;(w) a promise to pay when it should be in the defendant's power; (2) when the indorser wished for time, and agreed to give security on the plaintiff's request therefor, and a subsequent refusal to comply with the agreement;(y) a proinise to pay a part,(2) unless the drawer expressly limit his liability to the payment of that part only; (a) an admission by the drawer, after suit was
(9) Read v. Wilkinson, 2 Wash. C. C. 514.
(r) Hopkins v. Liswell, 12 Mass. 52. But in Freeman v. Boynton, 17 id. 483, where the indorser complained of the hardship of his case, but promised to pay as soon as he possibly could, or words to that effect, Parker, J. said, that "the facts reported do not show any direct promise to pay'
(s) Byram v. Hunter, 36 Maine, 207.
(z) Harvey v. Troupe, 23 Missis. 538, where the judge, at Nisi Prius, charged the jury that “A promise by a drawer of a bill of exchange, after its maturity, to pay the same, or any part thereof, is a waiver by him of presentment to the acceptor, of demand of payment, and notice of protest.” Held correct. Smith, C. J. said : “ A promise to pay generally, or a promise to pay a part, or a part payment made, with a full knowledge that he has been released from liability on the bill by the neglect of the holder, will operate as a waiver, and bind the party who makes it for the payment of the whole bill.” In Margetson v. Aitken, 3 Car. & P. 338, there was no proof of any notice of dishonor, but after the bill had become due, the indorser offered to pay the plaintiff a composition of eight shillings in the pound. Lord Tenterden expressed an opinion that this dispensed with the necessity of notice.
(a) Harvey v. Troupe, 23 Missis. 538, where the bill was for $ 1,309.25. The drawer paid $ 250, promised to pay $ 900 more, but claimed a credit for some cotton shipped by him to the acceptors. Fletcher o Frognait, 2 Car. & P. 569, where the drawer of a bill for £ 200, not having received due notice of its dishonor, stated to a witness that