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was one of waiver of notice alone, an unequivocal promise on the part of the indorser or drawer would ordinarily be, at least, prima facie sufficient; because the party must know whether he had received notice or not; and a promise to pay when no notice at all has been given, would seem to show an intent to waive objection to liability on this account. There are authorities in which this view seems to be adopted,(a) but it is inconsistent with oth
name against the estate of the drawer who had failed, received a dividend upon it, and retained the bill. Held that he was liable on this promise, unless he could prove it to have been made under a mistake of the facts. Martin v. Ingersoll, 8 Pick. 1. In Hopley v. Dufresne, 15 East, 275, the facts in which are cited supra, p. 601, note x, the grounds on which it was contended that the indorser knew that the presentment had been defective appear to have been, that the defendant, an indorser of a bill, applied for an extension after the declaration had been filed, which alleged due presentment. Lord Ellenborough appears to have considered these circumstances so far sufficient as to authorize the question of knowledge to be submitted to the jury. In Patterson . Becher, 6 J. B. Moore, 319, the defendant, a drawer of a bill, appears to have made a promise to the plaintiff's attorney; and subsequently, on the same day, the defendant's attorney wrote a letter to the attorney of the plaintiff, stating that he had waited on the defendant and advised with him respecting the demand; and that, in behalf of the defendant, he offered to give a warrant of attorney for the amount, payable in three months, the earliest period that he could, with any degree of certainty, fix for the payment of the same Although the facts do not show whether there was any presentment or protest, yet the court seem to have decided the case upon the ground that the above facts constituted a waiver of presentment, and not merely presumptive evidence. See Schmidt v. Radcliffe, 4 Strob. 296.
(a) See the remarks of Washington, J. cited infra, p. 605, note g. See Walker v. Laverty, 6 Munf. 487, supra, p. 601, note x; Pate . M'Clure, 4 Rand. Va 164; Rogers v. Hackett, 1 Foster, 100, infra, p. 605, note e; Wilkes v. Jacks, Peake, 202; Nash v. Harrington, 1 Aikens, 39, 2 id. 9; Ladd v. Kenney, 2 N. H. 340, where the presentment was in due season. Richardson, C. J. said: "In the present case, the defendant, when informed, more than four weeks after the note became due, that it had not been paid, made no objection that he had not been seasonably notified, but promised to see the maker, and have the note paid before he returned home. We are of opinion that the jury were rightly directed to consider such a promise as a waiver of any objection to the notice, and that there must be a judgment on the verdict. See the remarks of Weston, C. J., cited infra, p. 604, note d; of Shaw, C. J., infra, p. 606, note k. In the facts as reported there does not appear to have been any evidence of actual knowledge that no notice had been given. In Fitch v. Redding, 4 Sandf. 130, where the defence was want of proof of notice, the drawer of the check apologized for its not being paid, and gave as a reason, that it was not convenient at the time, but promised to pay it in a few days. Duer, J. said: "As the defendant had 1.0 funds in the bank upon which the check was drawn, he was not entitled to notice; and had he been notified, his subsequent promise to pay the check would have been a waiver of the defence." There does not appear to have been any evidence of knowlndge of want of notice In Barkalow v. Johnson, 1 Harrison, 397, 402, Hornblower, C. J., after referring to the absence of facts showing knowledge, said that the indorser "knew indeed whether he had or had not received a notice of demand and non-pay
ers.() In the following instances, the finding of the jury, that the defendant had knowledge of the facts, was held to be justified; where the agent of the plaintiff called on the defendant, and informed him that he had neglected to take measures for the collection of the note, and asked him what he should do; (c) where the drawer of a draft, on being informed of its nonpayment, took the draft to obtain payment, and afterwards returned it, saying that he was unable to procure payment; (d)
ment." In Debuys v. Mollere, 15 Mart. La. 318, Mathews, J. said: is equivalent to a promise to pay, and it only remains to ascertain the legal effect of the promise. The indorser must have known whether he was duly notified of the protest. If he were not, by promising to pay he waived the advantage which such negligence would otherwise have given; if he did not receive regular notice, he is liable under his subsequent promise." See Nash v. Harrington, 1 Aikens, 39, 2 id. 9; Loose v. Loose, 36 Penn. State, 538.
(b) Trimble v. Thorne, 16 Johns. 152. Spencer, C. J. said: "The court never intended, in the various cases which have come before them on this point, to leave it to be inferred, from the mere fact of the subsequent promise, that regular notice had been given, or was intended to be waived. In the case of Beekman v. Connelly, recently before us, we held, that the proof of a promise to pay, merely, without its appearing also that the party knew he had not received regular notice, did not dispense with the proof of regular notice. An indorser may believe that due notice has been given, inasmuch as notices need not be personally served, and under an ignorance of the fact, consider himself liable when he is not. It is no hardship on the holder of a bill or note, to require of him proof of regular notice; but if a party, with a full knowledge of all the facts, voluntarily promises to pay, and waives his right to notice, he will be held to his promise." This case has been overruled by another in the same jurisdiction, and much doubted in others, as will be seen subsequently, but on another point. So Dayton, J, in Sussex Bank v. Baldwin, 2 Harrison, 487, 496, said, that "an admission that notice of the protest had been received through the bank is nothing. It does not appear when it was received." Hicks v. Duke of Beaufort, 4 Bing. N. C. 229; New Orleans Bank v. Harper, 12 Rob. La. 231; Lacoste v. Harper, 3 La. Ann. 385; Glenn v. Thistle, Rob. La. 572; Harris v. Allnutt, 12 La. 465; Laporte v. Landry, 17 Mart. La. 359, 16 id. 125.
(c) Sigerson v. Mathews, 20 How. 496.
(d) Cram v. Sherburne, 14 Maine, 48. Weston, C. J. said: "It is insisted that there is no evidence that the defendant knew that the plaintiff had been guilty of laches, and that therefore the judge was not justified in leaving it to the jury to find such knowl edge. We think otherwise. The defendant knew that no notice had been given to him that the note was not paid, until a month after it was drawn, although it was payable in three days. And his conduct is evidence that he knew the order had not been demanded at its maturity, for he himself undertook at that time to make the demand for the plaintiff of the drawer, who declined to pay it. He knew this demand was unreasonable, notwithstanding which he expressly promised the plaintiff to pay him the amount of the order. The demand made by the defendant was either made by him as agent for the plaintiff, the holder, or it is evidence that he undertook to do it himself, waiving his right to require that it should be done by the plaintiff. And in
where the holder testified that the indorser knew, by a conversation held between them, that no demand had been made; (e) an acknowledgment of liability by the first indorser, coupled with an agreement to pay one fourth of the note, subsequent to a suit against him by the holders, and judgment obtained after contestation.(f)
In the following instances, the evidence was held not sufficient to show knowledge. A statement by the indorser that he knew that the maker had not paid, and was not to pay the note; that it was the concern of himself alone, and that the maker had nothing to do with it; (g) knowledge that a note had not been paid,(h) because a knowledge of non-payment is not a knowledge of nonpresentment; a statement by an indorser, that he had no depend
either case it is evidence, by necessary implication, of a waiver of notice of non-pay ment from the plaintiff."
(e) Rogers v Hackett, 1 Foster, 100. This was held a waiver of demand and no tice; nothing appears to be said as to the knowledge, or want of knowledge, of the notice not being given.
(f) Keeler v. Bartine, 12 Wend. 110 In this case judgment had been obtained against the last indorser, and the maker and indorser had agreed that each should pay one fourth of the judgment, and neither party should look to the other for any part so agreed to be paid by him. The second indorser, nevertheless, after payment of his fourth part, sued the first indorser for the amount, and recovered, because there was no consideration for the agreement. It was in this last suit that the defendant was presumed, from the facts, to have had knowledge of laches, and demand and notice, if any existed
(g) Thornton v. Wynn, 12 Wheat. 183, 188. Washington, J. said: “These decla rations amounted to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. It does not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury, to whom the conclusion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder, in not making a regular demand of payment of the note, by which he was discharged from his responsibility to pay it The knowledge of this fact formed an indispensable part of the plaintiff's case, since without it, it cannot fairly be inferred that the defendant intended to admit the right of the plaintiff to resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point of law. For anything that appeared to the court below, from the evidence stated in the bill of exceptions, the admissions of the defendant may have been made upon the presumption that the holder had done all that the law required of him, in order to charge the indorser. That due notice was not given to the defendant, he could not fail to know; but that a regular demand of the maker of the note could not be inferred by the court from the admissions of the defendant."
(h) Low v. Howard, 11 Cush. 268, where a charge to a jury, that a promise to pay, with full knowledge that the note had not been paid nor notice given, was a waiver of dem md and notice, was held incorrect.
ence on the maker to pay the note, that he understood that the note was lying over unpaid, and he expected it would have been sent on for collection before; (i) the fact that the drawer has included the demand in an account for his creditors, in an application for his discharge in insolvency.(j)
Although it is clear that a promise to pay, with knowledge that no demand has been made nor notice given, is sufficient to constitute a waiver; yet it is still open to the defendant to prove that, although he knew these facts, the promise was made in ignorance of other material circumstances, which, if he had known, would have prevented him from making the promise.(k) Thus, where the holder gave up the indorsed note to another party, receiving his in return, under circumstances showing that the latter note was taken in payment of the former, or under circumstances which would discharge the indorser, and subsequently took back the former, the latter being unpaid, a promise by the indorser to pay, in ignorance of these circumstances, was held not binding.(1)
(i) U. S. Bank v. Southard, 2 Harrison, 473. Nevius, J. said: “Suppose he did not expect that the maker would pay the note, this would not absolve the holders from their obligation to make the demand; and suppose it to be true that he was informed that the note was laying over unpaid, this was no evidence to him that it had been duly demanded of the maker; and his expectation that it would before have been sent on for collection does not prove that he knew that he was discharged by the laches of the holder."
(j) Jones v. Savage, 6 Wend. 658.
(k) Low v. Howard, 10 Cush. 159. where the judge at Nisi Prius charged the jury that, though it was generally true that a promise by an indorser to pay the note, when there had been no demand, and no notice of its dishonor, would be held to be a waiver thereof, if these facts were known to him; yet the rule would not apply to a case where other material circumstances existed, the knowledge of which was essential to a full understanding of his rights and obligations. Shaw, C. J. said: "We think the direetions were right. The legal foundation of the doctrine of waiver is, that a party knowing his rights voluntarily consents to forego them. . . . . Knowledge of all the material facts on which those rights depend is essential to a valid waiver. The legal liability of an indorser is conditional on demand and notice. But the condition is one made for his benefit; and therefore he may waive it. If he is satisfied that demand and notice would be of no benefit to him, it is quite natural that he should waive them. In gen. eral, if he knows there has been no demand and notice, and yet promises to pay, it is strong evidence of waiver. But if there be other facts which might tend to influence his judgment, known to the holder, but not to the indorser, then his promise to pay is not conclusive evidence. Here, then, were facts alleged to be material, and if true, were so, and they were left to the jury with proper directions, who found a verdict for the defendant, and therefore affirmed the truth of the facts."
(1) Low v. Howard, 10 Cush. 159. The facts in this case were as follows. The holder
It has been held by some authorities, that a promise to pay by the indorser, in ignorance of the fact that the circumstances known to him would discharge him in law, was not binding; or, in other words, that a promise to pay in ignorance of law was of no effect.(m) But this has been repudiated, (n) and with reason,
of the first note went to the parties in whose employ the maker was, to endeavor to obtain payment out of what they might be owing the maker. They took this note and gave their own for the same amount, payable at the same time, which the holder received as a receipt for the first. They owed the maker at the time, showed him the note, and with his consent agreed to charge it to him. The makers of the second note became insolvent, and there had been no settlement between them and the maker of the first. The holder then took back from the makers the first note, giving up the second. Before the time of the last transfer, one of the makers, who had obtained possession of the second note, had erased his name therefrom, but put it upon the note again, at the suggestion of the holder, who made a verbal agreement that he should never be called on for payment.
(m) Warder v. Tucker, 7 Mass. 449, where the court said: "And although the defendant, when he first received notice from the plaintiffs of the protest of the bill, considered himself as liable by law to pay the plaintiffs the amount of it, yet his ignorance of the law shall not bind him to fulfil an engagement made through mistake of the law." In Freeman v. Boynton, 7 Mass. 483, Parker, J. said: "Nor will any supposed acknowledgment of the indorser, that he was liable to pay the note, avail the plaintiffs in the present case. The facts reported do not show any direct promise to pay, and even if they did, it is well settled that a promise under such circumstances as show an ignorance that the party was legally discharged is without consideration and void." Fleming v. M'Clure, 1 Brev. 428. See Spurlock v. Union Bank, 4 Humph. 336. In Miller v. Hackley, Anthon, 68, Thompson, J. said: “That a promise may amount to a waiver in a case like the present, enough must appear to render it justly presumable that the defendant at the time knew the fact of the want`of notice, and also knew his legal rights." See Chatfield v. Paxton, 2 East, 471, note a.
(n) Ladd v. Kenney, 2 N. H. 340. Cowen, J, in Tebbetts v. Dowd, 23 Wend. 379, 386, said: "This notion has long since been exploded." In Richter v Selin, 8 S. & R. 425, 438, Duncan, J. said: His ignorance of the law would not render the promise void. For if, with knowledge of the fact of demand not having been made, he makes a promise under the supposition that he will be still liable at law, it will be valid." So in Kennon v. M'Rea, 7 Port. Ala. 175, 184, Collier, C. J. said: "And it will make no difference that a promise or acknowledgment was made under a misapprehension of the law; for every man must be taken to know the law; otherwise, a premium is held out to ignorance, and there is no telling to what extent this excuse might be carried." Carr. J., Pate v. M'Clure, 4, Rand. Va. 164, 170. See Schmidt v Radcliffe, 4 Strob. 296; Bilbie v. Lumley, 2 East, 469, where "Lord Ellenborough, C. J. asked the plaintiff's counsel whether he could state any case where, if a party paid money to another voluntarily, with a full knowledge of all the facts of the case, he could recover it back again on account of his ignorance of the law. No answer being given, his lordship continued The case of Chatfield v. Paxton is the only one I ever heard of, where Lord Kenyon, at Nisi Prius, intimated something of that sort. But when it was afterwards brought before this court on a motion for a new trial, there were some other circumstances of fact relied on, and it was so doubtful, at last, on what precise ground the case turned, that it was not reported." Stevens v. Lynch, 12 East, 38, where the