37 Mo. 91 | Mo. | 1865
delivered the opinion of the court.
On a former occasion this case was reversed in this court, upon a defective petition, and was remanded with leave to amend. It then contained an averment that “ at defendant’s
On the last trial the plaintiff offered to read in evidence the testimony of Washington King, the maker of the note, as preserved in the bill of exceptions, which was filed on the former trial of the cause (it being admitted that the witness
An issue upon a common or free fishery in one case, and upon a several fishery in another, and an issue upon the stealing of a buggy and upon the stealing of a mule, has been held to be different. (Melvin v. Whiting, 7 Pick. 79; Davis v. Steele, 17 Ala. 354.) The principle upon which the distinction turns is the right of cross-examination, and where the issues are so nearly the same that it is apparent that there was an opportunity to cross-examine the witness as to the same matter in both cases, the issue will be considered as sufficiently identical. (1 Greenl. Ev. § 164.) We think the issues here were substantially the same.
As to the other objection, it is sufficient if the statement
The main questions involved in the instructions are: first, on the part of the defendant, whether there was any evidence which was competent to go to the jury on the issue made upon a waiver of demand and notice; and second, on the part of the plaintiffs, whether the first and third instructions which were given for the plaintiffs were correctly given, to the effect that if the defendant, upon being advised by the maker of his inability to meet the note at maturity, authorized him to make his agreement with the holders to save it from protest, and that the plaintiffs- upon being asked not to protest it, and assured that as soon as the defendant returned he would arrange the note, relying upon such assurance, omitted to make demand and give notice; or if the maker, at the instance and request
The testimony of King, the maker, was the only evidence that was offered as affirmatively tending in any way to establish the facts in issue. It is here set forth in full as follows : “Defendant waived the protest and notice, but thought it could only be done in writing; that, some days before the note sued on became due, he saw the defendant and told him he could not pay it. Defendant said he could not pay it either. Defendant asked who held the note, and said that an effort might be made to renew it. On the morning of the day the note fell due, after a good deal of inquiry, I found it at the banking-house of Lucas & Simonds, where it had been deposited for collection, and there learned that it belonged to the plaintiffs. I was authorized by defendant to make arrangements to save the note from protest, and the necessity of giving notice before defendant started up the river. This was on Saturday morning; on the Wednesday previous, the defendant told me he was going to Palmyra, to be absent until the Monday following. I remarked ‘ the note will go to protest, which you are desirous not to have done. Could you not get back by Saturday ? ’ He said he would try, and asked me to try and find the note. He did not get back until the Monday or Tuesday of the next week. On Saturday, after I found the note at Lucas & Simonds’, and learned that it belonged to Jaccard & Co., I called at their store. Mr. Jaccard said he did not know Mr. Anderson, but knew me. I told him Mr. Anderson would waive the protest on his return and we could arrange about the note afterwards. After Anderson returned, on Monday or Tuesday, I saw him and asked him
Taking these statements altogether it is clear for one thing, that they do not show any conversation, negotiation, or agreement of any kind between the defendant and the holders of the note, directly or in person, but only between them and the maker. Whatever may have been the understanding between the maker and the defendant as to a waiver or a renewal, that alone could not affect the rights of the holders, nor excuse them from all diligence for the protection of their own interests. The waiver is a matter between the holder and the party who is to be charged with liability, and any agreement for a waiver of demand and notice must be made between them. There must be some special agreement between the holder and the particular endorser waiving due presentment, and no other party is bound by it. (Sto. Notes, § 271.) When such an agreement is made, it makes no difference whether or not there was any other valuable consideration for it than the detriment that might be occasioned to the holder in consequence of the fraud or breach of faith of the endorser, if he were not held to be bound by it; but there
He says also that he was authorized by the defendant to make arrangements to save the note from protest and the necessity of giving notice. He does not say that he was authorized to make an agreement to that effect with the holders in the name of the defendant. According to the views above expressed, such an agreement would have amounted to a waiver of demand and notice.
The maker could have saved the note from protest by making arangements to pay it, or to renew it by giving a new note with a new endorser instead of defendant, and it is by no means clear that such was not the full extent of the authority intended to be given. The witness uses language of his own and not that of the defendant, and taking all his statements together it is pretty evident that he did not him
This view is entirely consistent with the statement of the witness for the defendant, that, as his counsel, some time previous to the former trial, he had called on King to know what he could state with regard to the matter, and that he then stated emphatically that the defendant never had waived the protest, nor agreed to do so, and that he had never told the plaintiffs that the defendant had waived protest on the note; but, from what defendant had said to him, he believed he would do so after his return to the city. The result is that there is no evidence whatever here that tended to show a clear and unequivocal agreement for a waiver of demand and notice between the endorser and the holders, either in person or by agent.
Agreements of this sort are to be construed strictly, and not extended beyond the fair import of what is said and done. (Sto. Notes, § 271.) The action of the defendant, at most,
In Taunton Bk. v. Richardson (5 Pick. 436) the endorser promised the holder to take care of the note and attend to the renewal of it; and this was held to be presumptive evidence of a waiver by him. In Boyd v. Cleveland (4 Pick. 525) the endorser promised that he would take up the note, if not paid by the other party ; and this was held to warrant a conclusion that there was a waiver. In Russell v. Cronkhite (32 Barb. 282) the endorser said to the holder, it is “ all right; the note is perfectly good; put yourself to ho trouble”; and this was held to be sufficient evidence to go to the jury in the question of waiver. In Thornton v. Wynn (12 Wheat.
On all the facts appearing here, we think the holders were not justified in presuming that the endorser would waive any of his legal rights in the matter, or that if they ventured to rely upon the personal assurance of the maker, without any communication with the endorser himself, or any distinct agreement made by him, or by the maker as his authorized agent, they cannot complain and must bear the loss.
Our conclusion is, that the two instructions given for the the plaintiffs, though they may have been correct enough as general propositions of law, were erroneously given, as having no sufficient basis in the evidence before the jury, and that the fourth and fifth instructions which were refused for the defendant, to the effect that there was no sufficient evidence in the case to entitle the plaintiffs to recover, should have been given.
The judgment is reversed.