16 N.H. 410 | Superior Court of New Hampshire | 1844
This is an action by an indorsee of a promissory note against the indorser. The first count sets forth the making of the note on the 16th day of November 1840, payable to the defendant, its indorsement and delivery for value by him to the plaintiff, its presentation to the makers.for payment, their refusal, and notice on the same day to the defendant.
The second count alleges, that on the 17th day of February 1841 the plaintiff having the note in his possession, which the defendant had for value on that day indorsed and delivered to him, in consideration that the plaintiff at the defendant’s request would forbear and give day of payment to the makers till the first day of June next following, the defendant promised to pay him the contents; that he did forbear, &c., of which the defendant had notice.
The third count alleges the making of the note on the 1st day of November 1840, payable to the defendant; that he on the 17th day of February 1841, indorsed and delivered the samé to the plaintiff, and afterward on the same day waived demand on the makers, and notice, whereby he became liable. The money counts are added.
It was proved, that on the 17th day of February 1841,
This was on the day on which the note was indorsed and delivered to the plaintiff, and while he had the undoubted means, by pursuing the course usual in such cases, of fixing beyond any question the liability of the defendant. In consequence of the agreement of the defendant to waive the demand and notice, and by reason of his promise to pay the note if the plaintiff would forbear the demand for a time limited, the plaintiff omitted to make it, as he might and, it is to be presumed, would otherwise have done; and the question is, whether the defendant is bound to pay the note.
It is perfectly settled, that a waiver of demand and notice need not be in writing, and that the modification that such waiver gives to the contract, created by the indorsement and delivery of the negotiable paper, is not such as is by the statute of frauds required to be put in writing; that no fixed verbal formula is necessary to constitute such a waiver, but that like any other fact it may be proved by direct evidence, or inferred from expressions and conduct of the parties. Fuller v. McDonald, 8 Maine
In Lane v. Stewart, 20 Maine 98, at the time of the indorsement of the notes declared on, the defendant said, if Sargent the maker did not pay the notes when due, he would; and after they became due, and when payment was demanded of the defendant, the indorser, he requested the plaintiff to sue the makers. This was held sufficient. The court there say, “ It has been decided that parol testimony to prove a waiver does not contradict the written contract between the indorser and holder; and that a promise to pay if not paid by the other parties when due, made by an indorser at the time of indorsing, may be regarded as a waiver of a demand upon the maker.” Boyd v. Cleveland, 4 Pick. 552.
This case presents points of resemblance to the one before us; and there can be no doubt upon the authorities, that the evidence in the case proved a waiver of the demand and notice upon the defendant; and that an action may be maintained against him upon his liability as indorser, as if such demand and notice had been given by the plaintiff. Whitney v. Abbott, 5 N. H. 397; Otis v. Hussey, 3 do. 347 ; Ladd v. Kenney, 2 do. 340; Baker v. Parker, 6 Pick. 81.
It appears very distinctly from the case, that the conversation showing the contract of waiver, in part took place after the indorsement and delivery of the note to the plaintiff were complete; and consequently the ease is not embarrassed by any question as to the competency of parol contemporaneous evidence varying or affecting the written contract.
It is also well settled that in an action against an indorser, the allegation of demand and notice is proved by evidence that the defendant waived it. 2 Starkie’s Ev. 274; Taunton Bank v. Richardson, 5 Pick. 436; Lane v. Steward, 20 Maine 98.
The witness had detailed with a good degree of minuteness, the conversation between them, in which the defendant was represented as saying, that he was good for the note, or had got it to pay, using one or the other of those expressions.
In one aspect this question resembles one decided at this term in Braley v. Braley [See post p. 426]; where it was held, that if a witness testify to what was said, he shall not be permitted to testify as to what he understood to be meant by the language used. The inference from the words used, was for the jury to make; who might consider the words in connection with the attending circumstances. It was not a witness’ province to give any opinion on such matters, since he could have in general no better means of forming one than the jury might have furnished to them. So that if the object of the inquiry ■was, as it seemed to be, to draw forth the witness’ opinion of the construction that ought to bo given to the defendant’s language, the question was an improper one. If however the inquiry was whether the witness really supposed the defendant intended to do what his words might constitute a promise on his part to do, the irrelevancy of the evidence is obvious. Any opinion of the witness on such a subject, would hardly be considered as entitled to much consideration as evidence of the secret purposes of the defendant, while these, if they could be proved, would not be regarded, if they were opposed to the just import and meaning of the language conveying a promise.
The ruling of the court was correct upon this head, and consequently there must be
Judgment on the verdict.
