Amoskeag Bank v. Moore

37 N.H. 539 | N.H. | 1859

Sawyer, J.

The application made to the bank by the defendants, a few days before the maturity of the note, for an extension of the time of payment, and the arrangement which resulted, giving sixty days further time, furnished sufficient ground for the understanding on the part of the plaintiffs that demand of payment of the makers at the maturity of the note would be unnecessary. They must be supposed to have considered that it would be an idle step to demand payment in order to charge the indorsers, when the indorsers themselves had previously made an arrangement with the holders, assented to by the makers, as appears from their payment of the interest for the extended time, that payment should not then be made. The omission to make the demand is consequently to be attributed to this interference of the indorsers, and they cannot be permitted to assume the ground that they have obtained a discharge from their liability as indorsers, by reason of the omission to make a demand which their own proceedings have rendered idle, and therefore unnecessary to be made. The ground upon which a demand of the maker is held to be a pre-requisite to the liability of the indorser, is that it is to be presumed that the maker has provided himself with funds to pay the note upon presentment at maturity; and the indorser should not be resorted to for payment until the maker, the parly primarily liable, has had opportunity, by such presentment, to apply the funds provided for that purpose in satisfaction of the debt-. But where the parties have agreed that payment shall not then be made by the maker, tire occasion for presentment is removed. The indorsers, by their application for the extension, and the agreement which followed, have furnished the holders with a valid excuse for not making the presentment. This constitutes a waiver by them of demand and notice, precisely as if they had expressly indorsed with such waiver; and thereby tbe contingent character of their liability as indorsers, depending upon the demand of payment upon the maker, and notice of non-payment, is converted into one of an absolute character as of guarantors. Their liability being thus fixed and absolute at the maturity of the note, by reason of their indorsement and waiver of demand and notice, the fact that no demand was made at the expiration of the extended time is immaterial, as is also the evidence offered in relation to their subsequent promise to pay. Tbe indorsement and waiver render them liable to pay, with or without a subsequent promise, and with or without a demand upon the maker at any time. The verdict may well he sustained upon this ground; and as nothing appears in the-case tending to exonerate them from their liability as indorsers who have waived demand and notiee, there must be

Judgment on the verdict.