Moll v. Roth Co., 152 P. 235

Moll v. Roth Co.

152 P. 235 | Or. | 1915

Mr. Justice Bean

delivered the opinion of the court.

1-5. The question for determination is as to the waiver of presentment and notice of nonpayment. Our negotiable instruments law provides that presentment for payment is dispensed with by waiver of presentment, express or implied: Section 5915, L. O. L.; Crawford, Neg. Inst., p. 107, notes. Notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice, and the waiver may be express or implied : Section 5942, L. O. L. When any fact or transaction exists which raises an equity between the indorser and indorsee and shows it to be inequitable to enforce the written contract, there arises an exception to the general rule that parol evidence will not be admitted to vary the contract of a blank indorsement: Dale v. Gear, 38 Conn. 16 (9 Am. Rep. 353); Jones v. Albee, 70 Ill. 37; 7 Cyc. 1124. An agreement at or before maturity of the note that an extension of time shall be given is a sufficient circumstance or fact to authorize an inference of waiver: Daniel, Neg. Inst. (4 ed.), § 1106; Sheldon v. Horton, 43 N. Y. 93 (3 Am. Rep. 669); Amoskeag Bank v. Moore, 37 N. H. 539 (75 Am. Dec. 156); Ridgway v. Day, 13 Pa. 208. Any act, course of conduct, or language of the indorser calculated to induce the holder not to make demand or protest or give notice, or to put him off his guard, or any agreement to that effect, will dispense with the necessity of taking such steps: Daniel, Neg. Inst. (4 ed.), § 1103; Boyd v. Bank of Toledo, 32 Ohio St. 526 (30 Am. Rep. 624); Torbert v. Montague, 38 Colo. 325 (87 Pac. 1145); Taunton Bank v. Richardson, 5 Pick. (Mass.) 436; Yeager v. Farwell, 13 Wall. 6 (20 L. Ed. 476). The contingent *600liability of an indorser is changed into a fixed liability by waiver of demand and notice: Amoskeag Bank v. Moore, 37 N. H. 539 (75 Am. Dec. 156).

“A waiver must be made by one having the capacity to incur obligations, but, inasmuch as notice left with a clerk or party in charge of an indorser’s place of business is sufficient, it follows that a waiver by-a person so in charge is effective”: 7 Cyc. 1124.

6. It appears that plaintiff resided in the country, and it was proper for him to engage someone who was so situated as to be able to look after the collection of the note. When the defendant agreed to do this and entered upon that duty and prepared the notice to Hickok, the maker, the natural result was for plaintiff to believe that everything necessary in the premises would be done. Such arrangement would undoubtedly cause him to refrain from placing the note in a bank or in some person’s hands in order that presentment for payment be made and notice of dishonor be given. Under these «circumstances it was the duty of defendant to carry out the undertaking according to its agreement, and, if anything was omitted, it has no cause to complain. This arrangement was not in conflict with or in contradiction of the written indorsement in blank upon the note. The plaintiff tendered proof to show that the obligation of defendant to assume the collection of the note was a subsequent transaction. The time of payment of the note was extended pursuant to the suggestion of defendant. The evidence produced -and tendered plainly shows that the defendant waived presentment and notice of nonpayment of the note: Robinson v. Holmes, 57 Or. 5 (109 Pac. 754).

7. It is urged by counsel for defendant that it was not shown who the officer of defendant was with whom *601the dealings were had, or that he had authority to bind the corporation. It is clear, however, from the record, that plaintiff referred to Mr. E. Schunke, the secretary of the company during all the time of the transaction between plaintiff and defendant, and that he was empowered by the latter to indorse and deliver notes “and such things” for defendant, and had so indorsed the note in question; in fact, this authority was admitted by defendant upon the trial. This proof was not challenged in any way. The objection of defendant to the proof tendered did not cover this point.

8, 9. Since a corporation can act only through its agents, the authority and power of the managing officers of the corporation in the aggregate are coextensive with those of the corporation itself. An officer or agent may act for and bind the corporation within the scope of the authority conferred upon bim either expressly or impliedly: 21 Am. & Eng. Ency. (2 ed.), 852.

The lower court erred in granting the nonsuit. The evidence in the case is all contained in the record, and it appears therefrom that under the provisions of our negotiable instruments law the evidence tendered should have been admitted, and the cause submitted to the jury.

The judgment of the Circuit Court is reversed and the cause remanded for a new trial. Reversed.

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Harris concur.