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for there are no good grounds for maintaining that the case of waiver is an exception to the sound maxim, that ignorance of law is an excuse for no one.
The subject of part payment after maturity has been considerably discussed with respect to the question of waiver, and the cases are not entirely in unison. It would seem to be settled, that a mere part payment, with knowledge, is a waiver; (0) but some authorities would appear to hold that part payment alone is sufficient evidence of a waiver, without proof of knowledge, (p) which doctrine is inconsistent with other au
court said, on Chatfield v. Paxton being referred to : The court considered those cases to have proceeded on the mistake of the person paying the money, under an ignorance or misconception of the facts of the case; but here the defendant had made the promise with a full knowledge of the circumstances, three months after the bill had been dishonored, and could not now defend himself upon the ground of his ignorance of the law when he made the promise."
(0) Sherer v. Easton Bank, 33 Penn. State, 134, where the notice was delivered to the indorser at the proper time, but it stated the demand to have been made two days before maturity. The demand was regular. The note was for $1,600, of which $ 500 had been paid. Strong, J said: "We come, then, to the inquiry whether the court erred in instructing the jury that there was evidence of what dispensed with notice to the indorser,' and that, if they believed the $500 was a payment by the defendant, it dispensed with the necessity of proving demand and notice to him, and that it was an acknowledgment of the liability created by the indorsement.' The defendant com. plains of this for two reasons: first, that it was an invasion of the province of the jury. . . . . That a subsequent promise to pay the note by an indorser, who has full knowl edge of all the facts, amounts to a complete waiver of the want of due notice, is well settled, and settled as a matter of fact. So does a part payment. . . . . If, then, payment of part of a note is, in law, a waiver of notice of dishonor, and not mere evidence of notice, the court in this case withdrew nothing from the jury upon which they had a right to pass. The legal effect of a given state of facts is always for the court. It was submitted to the jury to find whether the defendant made the payment. If he did, the fact that he made it with full knowledge of the circumstances was proved, and was not controverted. All the rest was a legal conclusion." Harvey v. Troupe, 23 Missis. 538. (p) In Read v. Wilkinson, 2 Wash. C. C. 514, Washington, J. charged the jury, that "The want of funds in the hands of the drawee, the drawer's payment of part of it, and his subsequent acknowledgment of the debt, and promise to send funds to take it up, are either of them sufficient to dispense with notice and protest." In Levy v. Peters, 9 S. & R. 125, Tilghman, C. J. said: "Whenever the drawer acknowledges himself to be liable to payment, the necessity of proving a demand of the drawee, and his refusal to pay, and notice to the drawer, is dispensed with. Because such acknowledgment carries with it internal evidence that the drawer knew that due diligence had been used by the holder, or even if it had not, that still the drawer confessed that he was under an obligation to pay. And it is immaterial whether there be proof of an express promise to pay, or of other circumstances from which it can be inferred that the drawer acknowledged himself liable; and I take it that payment of part is such a circumstance. And there is good reason for it. For why should part be paid unless
thorities. (q) Part payment may certainly be explained; as, for instance, by the fact that the indorser paid it with money which he had received from the maker for that express purpose. (r)
5. By whom the Waiver is made.
In order to make a waiver effectual, it should be the act of the indorser himself, or of his duly authorized agent; because no person can waive another's rights. (s) Thus, it is no excuse for a failure to make a proper demand, as regards an indorser, that the maker told the holder, a few days before maturity, that it
the payer acknowledged the obligation of paying the whole?" Curtiss v. Martin, 20 Ill. 557, where the judge, at Nisi Prius, charged the jury that the payment by the drawer, if proved, of any part of the bills after they fell due, was a waiver of presentment to the drawee for acceptance and payment, and notice of non-acceptance and non-payment. Held correct. See Whitaker v. Morrison, 1 Fla 25, 34, where Hawkins, J. said: "The part payment of a note, not explained or qualified by any accompany ing circumstances, will be held to be sufficient evidence of waiver of notice" In Williams v. Robinson, 13 La. 419, the drawer of a bill paid a part, and subsequently, on being asked for the balance, said it was a third of exchange, and if he had examined it he would not have paid what he did on it, adding, that at the time the bill was given it was agreed that it should be paid in the place where it was drawn. Eustis, J. said: "From these facts it would be left to a jury to infer whether the partial payment was or not made with a knowledge on the part of the drawer of the want of demand, protest, and notice. The knowledge may be inferred from the circumstances attending the payment The reason for the drawer refusing to pay the balance due on the bill is placed on grounds entirely independent of his knowledge of the state of facts which would exonerate him. . . . . We consider the law as settled, that a subsequent promise to pay a bill or note, or a part payment thereof, must be made with full knowledge of the facts of a want of due diligence on the part of the holder, but that affirmative proof of the knowledge is not required. It may be inferred from the promise or payment under the attending circumstances."
(q) Spurlock v. Union Bank, 4 Humph 336, where there was a part payment and an acknowledgment of liability. The court seem to have proceeded upon the ground partly, that knowledge was not proved, and partly, that the indorser was ignorant of the law. See the remarks of Eustis, J., cited supra, note p.
(r) Whitaker v. Morrison, 1 Fla 25. Hawkins, J. said: "There was no evidence showing a promise of payment on the part of the indorser, and the bare fact of his delivering the money is not enough. As to this the indorser seems to have acted as the mere agent of the maker, and it would be at variance with all ideas of justice, explained as the occurrence is, that the indorser, acting in the capacity of an agent simply, should be rendered subject to legal liabilities, by the virtual act of his principal." The indorser who has paid the whole of a note in ignorance of laches, may recover the amount of the party to whom he paid it. Garland v. Salem Bank, 9 Mass. 408.
(s) In May v. Boisseau, 8 Leigh, 164, 180, Tucker, P. said: "What is the principle on which notice is waived? It is, that the consequences of neglect to give notice may be waived by the person entitled to take advantage of them. The act, then, which is
to operate a waiver must be the act of the indorser himself. It would be a solecism o permit the act of another to waive his right of insisting upon notice."
was no use to present the note, because it could not be paid.(t) Such evidence, in fact, is inadmissible.(u) So also a promise to pay made by one partner, after dissolution, although binding upon him, has been held not to bind the other partners. (v) An offer of composition by the acceptor, not acceded to, with a declaration in the presence of the drawer and holder, that he, the acceptor, had not provided for them, and should not do so, has been held to be no waiver of demand and notice. (w) Where there is a written waiver of notice on the back of the note, immediately followed by two indorsements, one under the other, the waiver is the several act of the first indorser, and not that of the second.(x) Notice may be given to one joint indorser, and the other may have waived it, and the effect of the waiver by the latter is an acknowledgment of the joint liability.(y)
6. To whom the Waiver is made.
With regard to the person to whom the waiver should be made, it would seem to be settled, that a promise to a third party, unconnected with and uninterested in the note or bill, is no evidence of waiver; (2) but a promise to the holder himself has been held to enure to the benefit of a party who subsequently takes up the paper, (a) and an agreement between the maker and the indorser,
(t) Lee Bank v. Spencer, 6 Met. 308.
(u) Pierce v. Whitney, 29 Maine, 188.
(v) Hart v. Long, 1 Rob. La. 83. See Bank of Vergennes v. Cameron, 7 Barb. 143; and supra, pp. 144 - 146.
(w) Ex parte Bignold, 2 Mont & A. 633.
(x) Central Bank v. Davis, 19 Pick. 373.
(y) Sherer v. Easton Bank, 33 Penn. State, 134.
(z) Olendorf n. Swartz, 5 Calif. 480; Jervey v. Wilbur, 1 Bailey, 453. See Allwood v. Haseldon, 2 id. 457; Miller v. Hackley, 5 Johns, 375, Anthon, 91, supra, p. 599, note j. (a) Kennon v. M'Rea, 7 Port. Ala. 175; Rogers v. Hackett, 1 Foster, 100, where Gilchrist, C. J. said: "There is nothing in the case (Roberts v. Peake, 1 Burr. 323) cited, which supports the doctrine that a promise to pay a note made by the indorser to the holder could not be given in evidence by a subsequent indorsee, in a suit against the first indorser. No reason occurs to us why the plaintiff should not avail himself of the evidence An indorser may waive such a defence, or not, as he sees fit. After having waived it, and surrendered it, upon what principle can he reclaim it? He cannot rely upon this defence as existing, or as non-existing, as his caprice or his interest may dictate. There is no need of considering the question whether it could be transferred by indorsement to the plaintiff, for negotiability or non-negotiability cannot be predicated of it. All that can be said of the matter is, that the party has waived his defence, and therefore cannot avail himself of it." See also Potter v. Rayworth, 13 East, 417, infra, p. 614, note l.
whereby the latter is to take up the note, will enure to the benefit of an indorsee in an action against the indorser,(b) as will an engagement between the maker and indorser to extend the time of payment.(c) And wherever the indorser takes security under such circumstances as will amount to a waiver, this must be considered, we think, as a holding out to whatever person may own. the bill, that he is the proper party to pay it, and the one primarily liable.(d)
There are a few authorities in which the doctrine that a promise to pay, after maturity, with full knowledge of laches, is held not binding because without consideration. (e) Although this is not now law, yet we think that the objection has certainly some weight.(f) As soon as the holder neglects to take the steps required by law to fix the drawer or indorser, from that moment his liability is at an end. The contract which he entered into, and by which he agreed to be bound, is broken, and he is discharged. How then can he be made liable, except by a new and indepen
(b) Marshall v. Mitchell, 35 Maine, 221. But in Baker v. Birch, 3 Camp. 107, where the acceptor, a few days before maturity, told the drawer that he should be unable to pay the bill, requested the drawer to take it up, and gave him part of the amount, and the drawer received the money, and promised to take it up, it was held that the latter might set up in defence a want of due presentment and notice; but that the money received was money had and received to the plaintiff's use.
(c) Williams v. Brobst, 10 Watts, 111.
(d) In Curtiss r. Martin, 20 Ill 557, supra, p. 609, the party who took the security was held entitled to avail himself thereof, as a waiver as to him.
(e) Lawrence v. Ralston, 3 Bibb, 102. See May v. Coffin, 4 Mass. 341; Chase, C. J., Beck v. Thompson, 4 Harris & J. 531; Donelly v. Howie, Hayes & J. 436, where Joy, C. B. said: "Either the judges have been inaccurate in the language they have used, or they have been inaccurately reported, or there has been a fluctuation of opinion upon this subject. . . . . . I confess I cannot conceive what is the meaning to be attributed to the word 'waiver,' when used in a case like the present, where the defendant has been absolutely discharged by the neglect of the plaintiff. He may waive the communication of a fact; but I do not understand how he can waive the existence of the fact. The law requires that the bill should be presented to the acceptor, when it becomes due, even though the acceptor be a bankrupt; and in my opinion it would be very prejudicial to the mercantile interests of the country, were we to fritter away the known rules of law, by establishing this new-fangled doctrine of waiver. The tendency of the modern decisions of courts of justice is to avoid new distinctions, or extending those which have been already introduced; and to decide cases according to the old, well-known rules of the law. Nor is there any pretence for saying that there is a moral obligation on the defendant, (an indorser,) to pay this bill, whereby the promise might be supported; for the plaintiff, by his own neglect, has discharged every person, except the acceptor of the bill."
(ƒ) Mr. Justice Story, Prom. Notes, § 275, has expressed an opinion to the same
dent contract, which requires, like all other contracts, a consideration to support it? The case is not analogous to those where a new promise is relied upon to remove a statutory bar to the remedy, and in which the debt itself, in theory, still exists, while all means of enforcing it are removed; because there is no debt either in theory or in fact. It is not unlikely that the cases by which the doctrine was first established arose with reference to the liability of drawers of bills, where the drawer received the money originally, and was, in fact, morally bound to pay; and the cases result from the doctrine, now repudiated, that a moral consideration is sufficient to support an express promise.(g) There is another objection which has been urged, but which rests upon far less secure foundation, that the promise, if by parol, is within the statute of frauds, being a promise to pay the debt of a third party, which is required to be in writing, and is consequently void.(h) This objection has, however, been held well taken, where the action was brought on the promise, and not on the note.(i)
It has been said that the doctrine applicable to waiver of notice of the dishonor of bills of exchange does not apply to promissory notes. But the distinction is not clearly pointed out.(j)
7. Presumptive Evidence in Reference to Waiver.
In our discussion of the subject of waiver, we have endeavored to confine our remarks to instances where it appears, either expressly or by implication, that no demand had been made or notice given, or where there were express laches. The same facts and circumstances are now to be considered in another
(g) In Hopes v. Alder, 6 East, 16, note, the counsel for the plaintiff urged that "the subsequent promise to pay, for which there was certainly an equitable consideration, put an end to any doubt. Gibbs, contra, admitted that this last objection was decisive.” Cowen, J., in Tebbetts v. Dowd, 23 Wend. 379, 382, after citing this remark, said: "In short, the force of the promise stands on what is often called in the books, by a latitudinary mode of expression, the consideration of moral obligation; a phrase which can never be judicially understood in its broad ethical sense, as it sometimes has been, without subverting the legal notion of a consideration. It means no more than a legal liability suspended or barred in some technical way short of substantial satisfaction." (h) This objection was expressly overruled in U. S. Bank v. Southard, Harrison, 473, which was an action on the note itself.
(i) Peabody v. Harvey, 4 Conn. 119.
(j) Thompson, C. J., in Agan v. M'Manus, 11 Johns. 180.