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commenced, of the justice of the plaintiff's claim; (b) a statement by the indorser, during the pendency of the suit, that the maker had promised to make some arrangement, and that he, the indorser, would pay in the course of a few months; (c) an acknowledgment of the debt by the drawer, with a promise to pay by instalments, on short time. (d) The question, what influ time.(d) ence the usage of banks may have upon the matter of waiver of demand, has already been considered, (e) as well as the indorse ment of a joint note where the makers live so far apart that a demand on all on the same day is impossible; (f) or where the indorsement is made so soon before maturity as to render a demand on the very day of maturity impossible.(g) In the following instances the promises have been held not to be sufficiently clear and distinct to show a waiver. A reply by the indorser, upon being asked what would be done with the note, that it will be paid; (h) a reply by an indorser, to the question whether he had any defence, that he knew of no defence; (i) a remark of an indorser to a third party, speaking of several bills, that he would take care of them, or see them paid, it not being certain whether the bill, in suit was referred to or not; (j) a
he did not mean to insist upon want of notice, but was only bound to pay £70. Held, that the plaintiff could only recover £ 70.
(b) Oglesby v. Steamboat, 10 La. Ann. 117.
(c) Hart v. Long, 1 Rob. La. 83.
(See Union Bank v. Grimshaw, 15 La. 321.
(g) Supra, p. 456, note t.
(h) Creamer v. Perry, 17 Pick. 332. Shaw, C. J. said: "It is a rule of law, that if an indorser, knowing that there has been no demand and notice, and conversant with all the circumstances, will promise to pay the note, this is to be deemed a waiver. But these rules in regard to notice and waiver are to be held with some strictness, in order to insure uniformity of practice and regularity in their application. . . . . In the present case, we are of opinion that the evidence falls short of proving a promise by the defendant, either to pay the note or see it paid. . . . . The strongest expression used by the defendant in the course of a long conversation was, the note will be paid. This is quite as consistent with the hypothesis that it was a mere assertion of his expectation that it would be paid by the promisor, as of a promise on his own part to pay it; and from the general tenor of his conversation, we think it cannot be inferred that it was his intention, knowing of his discharge, to waive his defence, and promise to pay the note, or see it paid at all events." Contra, Rogers v. Stevens, 2 T. R. 713, where the drawer said to the plaintiff's agent, on being informed that the bill had been dishonored, "It must be paid." Lord Kenyon directed a verdict for the plaintiff, which was sustained. (i) Griffin v. Goff, 12 Johns. 423.
(j) Miller v. Hackley, 5 Johns. 375, Anthon, 91. Van Ness, J. said, as reported in
statement by the drawer, on being urged by the agent of the holder to give a good bill for the amount of the first bill, which the agent said was unfair, that it would afford him great pleasure to do so, but that he thought it improper; (k) an answer by the indorser of a bill, in reply to a demand, stating that he could not think of remitting till he received the draft, and requesting the holder to return it to the prior indorser, if he thought him, the defendant, unsafe; (/) when the drawer said, I am unacquainted with your laws; if I am bound to pay the bill, I will; (m) when the indorser said to the bailiff, who had arrested him for the debt, that it was true the note had his name on it, but he had security, though he wished for time to pay it.(n)
Johnson: "I think there was not the requisite evidence of such promise. It ought to have been made out clearly and unequivocally. The defendant only said to a third person, when talking generally of all the bills, . . . that he would take care of the bills, or see them paid. Whether he used the one phrase or the other is left in doubt; and if the first phrase was used, it was altogether uncertain whether he meant to be understood that he would resist or would pay the bills. It would be dangerous to fix an indorser, without notice, and perhaps without knowledge, of the laches of the holder, upon such loose conversation with a third person. No case has ever gone so far." (k) Sherrod v. Rhodes, 5 Ala. 683.
(1) Borradaile v. Lowe, 4 Taunt. 93, where Mansfield, C. J. said: "I do not find any case in which an indorser, after having been discharged by the laches of the holder, has been held liable upon his indorsement, except where an express promise to pay the bill has been proved. Now the letter of the defendant contains no such express promise, but in a great measure shows that the defendant was writing under a supposition that he was liable, and that the prior indorsers would pay the bill; for he desires that it may be sent to Trevor & Co., who were the indorsers next in priority; but when he afterwards finds that the case is otherwise, and that the other indorsers would not pay, and that he also was discharged, he refuses, as it was still open to him to do. I cannot consider the letter as conveying an absolute promise to pay at all events, whether Trevor & Co. did or not; and I think, in this case, it would be too much to fix the defendant by any such implied promise. In most of the cases where the defendants have been held liable, they have either made an express promise to pay, or a promise when they had a full knowledge, at the time they were discharged, or where there was a real debt binding in conscience, due from them; but none of the cases have gone to the extent of making the defendant liable; and to hold that he was, in this instance, would be extending them beyond their fair import."
(m) Dennis v. Morrice, 3 Esp. 158.
(n) Rouse v. Redwood, 1 Esp. 155, where Lord Kenyon said: "When a person is arrested, and at the time ignorant of his rights, or whether he is bound by law to pay the demand or not, and under such circumstances makes any concession, and scemingly admits the demand, such admission shall not be allowed to be given in evidence to charge him." See Cuming v. French, 2 Camp. 106, note; May v. Coffin, 4 Mass. 341.
It has often been said that the promise must not be conditional; (0) but the authorities in which this doctrine is held de cide only that a conditional promise which is unaccepted is not binding.(p) And we think the rule should be so stated, because if the holder agrees to perform the conditions stipulated, and does substantially carry them out, this would seem to show an intent to waive objection to any laches equally with a direct unconditional promise.(g) Thus, an offer by the drawer to pay by instalments, substantially accepted, has been held binding.(7)
The following are instances in which a conditional promise, not accepted, has been held not binding. An offer by the indorser to give his own note, payable in a year, refused by the holder, because he wished an indorser to this note; (s) an offer by an indorser to turn out notes; (t) an offer by an indorser to pay
(0) See Donaldson v. Means, 4 Dall. 109; Dayton, J., Sussex Bank v. Baldwin, 2 Harrison, 487, 495, 496; Daniel, J., Moore v. Tucker, 3 Ired. 347.
(p) In Crain . Colwell, 8 Johns. 384, the court said: "The promise was conditional, and not binding, except upon the terms imposed." In the cases cited infia, the offers were rejected. Sice v. Cunningham, 1 Cowen, 397. In Barkalow r. Johnson, 1 Harrison, 397, 403, Hornblower, C. J. said: “The offer made by the defendant not having been accepted, matters remained in statu quo, and each party stood upon their legal rights." In Kennon v. McRea, 7 Port. Ala. 175, 184, Collier, C. J. said: "If conditional, the performance of the condition must be proved, before the promise or acknowledgment becomes absolute." See Cuming v. French, 2 Camp. 106, note.
(q) Thus it will be seen in the cases cited supra, that the promises were held binding, although conditional. But the conditions were accepted.
(r) See Union Bank v. Grimshaw, 15 La. 321, 339, where Morphy, J. said: "In defendant's first letter to the plaintiff, after fully acknowledging his obligation to pay his bills, he proposes to renew them at four, six, eight, and ten months' sight, with interest, under the most solemn assurances of payment Nine months after, he writes two other letters in the same sense, asking the plaintiffs' indulgence on paying part, and offering additional security. It is objected, that these propositions of defendant were rejected, and that his promises to pay were conditional. . . . . The defendant's propositions, it is true, were not formally accepted, but in consequence of his unqualified acknowledgment of the debt, and positive assurances of payment, the plaintiff forbore to bring suit until the 22d of February, 1838; thus granting him a delay of nine months, a greater or more advantageous indulgence than he had asked. It does not appear to us that there is any condition in the defendant's letters; there is term of payment, but not a condition. They are two things very distinct; the former necessarily presupposing a debt, and the latter not. 'A term,' says Pothier, No. 230 on Obligations, differs from a condition, inasmuch as a condition suspends the engage ment formed by the agreement; whereas a term does not suspend the engagement, but merely postpones the execution of it.'. . . . Defendant's acknowledgment of the debt, and his promise to pay it, must then be viewed either as an admission that the notices were good, or as a waiver of them."
(s) Agan v. M'Manns, 11 Johns. 180.
(t) Crain v. Colwell, 8 Johns. 384.
part in cash, and to give his note for the balance; (u) an offer by the indorser to give a new note of the same maker, indorsed by him, refused by the holder, who asked the indorser's own note; (v) an offer by an indorser to give his own note.(w)
It seems to be well settled, that a mere promise to pay, although direct and unqualified, will not be sufficient to constitute a waiver, where it appears that demand was not made nor notice given, or where there was actual laches in the acts themselves. The plaintiff in each case must go further, and prove knowledge, on the part of the party promising, of the facts. (x)
(u) Barkalow v. Johnson, 1 Harrison, 397.
(v) Laporte v. Landry, 17 Mart. La. 359, 16 id. 125.
(w) Sice v. Cunningham, 1 Cowen, 397.
(x) Kelley v. Brown, 5 Gray, 108; Low v. Howard, 10 Cush. 159; Hopkins ». Liswell, 12 Mass. 52. See Freeman v. Boynton, 7 id. 483; Hunt v. Wadleigh, 26 Maine. 271; Davis v. Gowen, 17 id. 387; Groton . Dallheim, 6 Greenl. 476; Edwards v. Tandy, 36 N. H. 540; Woodman v. Eastman, 10 id. 359; Carter v. Burley, 9 id. 558, 572; Farrington v. Brown, 7 id. 271, where an indorser signed an instrument stating that he held himself accountable. Held not binding, because not proved to have been made with knowledge of laches. Otis v. Hussey, 3 id. 346; Jones v. Savage, 6 Wend. 658; Sice v. Cunningham, 1 Cowen, 397; Trimble v. Thorne, 16 Johns. 152; Beckman v. Connelly, cited 16 id. 154; Crain v. Colwell, 8 id. 384; Sussex Bank v Baldwin, 2 Harrison, 487; U. S. Bank v. Southard, id. 473; Barkalow v. Johnson, 1 id. 397; Philips v. M'Curdy, 1 Harris & J. 187; Patton v. Wilmot, id. 477; Bank of U. S. v. Leathers, 10 B. Mon. 64, 66; Moore v Coffield, 1 Dev. 247; Fotheringham v. Price, 1 Bay, 291; Spurlock v. Union Bank, 4 Humph. 336; Brown v. Lusk, 4 Yerg. 210; New Orleans Bank v. Harper, 12 Rob. La. 231; Lacoste v. Harper, 3 La. Ann. 385; Glenn v. Thistle, 1 Rob. La. 572; Harris v. Allnutt, 12 La. 465; Tickner v. Roberts, 11 id. 14. But in Walker v. Laverty, 6 Munf. 487, the drawer acknowledged that the debt was a just one, and said that he would pay it. The defendant's counsel asked the court to charge the jury, that, unless the acknowledgment was made with a knowledge of the facts, it was not to be received. But the court instructed the jury, that the acknowledgment was a waiver of all notes. A judgment for the plaintiff was affirmed. The reasons for the opinion of the court are not stated. It may be, how ever, that, inasmuch as it was a question of waiver of notice, they proceeded upon the ground that the defendant must have known whether he had received notice or not. This case is recognized in Pate v. M'Clure, 4 Rand. Va. 164; Blesard v. Hirst, 5 Burr. 2670. See Goodall v. Dolley, 1 T. R. 712. In Hopley v. Dufresne, 15 East, 275, the plaintiff had been nonsuited because the presentment had been made after banking hours, although there was evidence that, after the declaration had been filed, the defendant had applied for an extension of time within which to pay the bill. It did not expressly appear whether the defendant knew, at the time, of the defect in the presentment. “Lord Ellenborough, stopping the argument, said that the court thought that it should have been left to the jury to say whether, under the circumstances of the case, the defendant had notice, at the time of his application for indulgence, that there had been no due presentation, and therefore made the rule absolute" for a new trial. In Pickin v. Graham, 1 Cromp. & M. 725, the clerk of the defendant, a drawer, VOL. I. 51
It has been sometimes said that a waiver cannot be inferred.(y) But if by this is meant that direct knowledge must be proved, we think it incorrect. Indeed, there does not appear to be any good reason why knowledge may not be proved in the same manner and by the same evidence in this matter as in any other. A jury will be justified in inferring knowledge from a variety of circumstances, such as the situation and connection of the parties, the words and acts of the indorser, the time which has elapsed between the maturity of the note or bill and the promise, and the like.(z) It would seem that, where the question
called upon an indorser the day after maturity; but before it could be known that the bill had been dishonored, and after it had been intimated that the acceptor would not or could not probably pay, the clerk said: "If that be so, I suppose there is no alternative but for me to pay the bill; if you will bring it to Sheffield next Tuesday, I will pay it." Held not binding, the defendant having received no notice till several days after matn rity The rule, as stated in the text, however, is inconsistent with the language used in some of the cases, where it is stated that a promise to pay will dispense with proof of presentment and notice, and throw on the defendant the double burden of proving laches and ignorance. This point is treated infra, p. 624. So in Schmidt v. Radcliffe, 4 Strob. 296, where the indorser promised to pay eight months after maturity, the maker and indorser residing in the same place, and having frequent business transactions with each other, the court seem to have considered the promise sufficient.
(y) See Laporte v. Landry, 16 Mart. La. 125, 17 id. 359.
(z) In Martin . Winslow, 2 Mason, 241, where there had been a delay of seven months to demand payment of the note which was payable on demand, which is an unreasonable delay under ordinary circumstances, Story, J. charged the jury as follows: “A promise to pay, with a full knowledge of all the facts, is binding upon the indorser, although he might otherwise be discharged. But if he promise in ignorance of material facts affecting his rights, it is not a waiver of those rights. The question, then, is, whether the indorser in this case had such knowledge. It may be inferred from the connection between the parties, their near relationship, and the deep interest which the defendant had in this particular case to ascertain, after the death of the maker, his own responsibility as indorser. It may also be inferred from the language used by him on this occasion. He did not object to the delay, though he knew the length of time which had elapsed since the note was given. As no objection of this sort was made, it leads to the presumption, either that the indorser understood originally that the note was to lie unpaid for a period at least as long, or that, under all the circumstances, he did not deem it an unreasonable delay. He had no ground to presume that any demand of payment was made of the maker in his lifetime, and the fact that the first known demand was on the administrators, and the first notice given to him after that demand, would strongly lead him to the conclusion that there had been no prior demand. And in fact no prior demand was made. But as these are mere presumptions of fact arising from the circumstances, the jury will give them what weight they think them, entitled to." See the remarks of Eustis. J., cited infra, p. 608, note p, where an indorser of a bill, after having had sufficient opportunity to ascertain the circumstances of the presentment, protest, and notice, promised a subsequent indorser who had taken up the bill to repay him, afterwards received the bill from this indorser, proved it in his own