32 Barb. 282 | N.Y. Sup. Ct. | 1860
The only question upon this appeal is whether there was not some evidence of a waiver of the demand of payment and notice t>f non-payment of the note by the defendant. If there was any evidence, no matter how slight, it should have been submitted to the jury. In ascertaining the mutual understanding of the parties, the circumstance which is relied upon as a waiver of the formalities necessary to charge the defendant, must be construed in the light and with the aid of the surrounding circumstances and the situation of the parties. It is very evident that the plaintiff had in view the getting of some promise, or recognition of liability, from the defendant, which should excuse the demand and notice. And if the defendant understood the object and purposes of the call, it would be for the jury to say whether the response did not waive these formalities; or if not, whether the plaintiff did not understand the defendant to waive them; and whether the defendant did not conclude that he should so understand. It is true that nothing was said of any demand of the note; but a notice of nonpayment would have been insufficient for any purpose without a former demand. The fair import of the declaration of the plaintiff was that unless the defendant said it was all right, he should take steps necessary to charge him as indorser. He may not have known the technical procedure for that purpose. But it is fair to presume that he either did, or would have taken counsel, if he had not been put off his guard by the defendant. The defendant did tell him the note was good; he need give himself no further trouble; it was all right. In other words, he told him, in language not to be misunderstood, that he need take no step to charge him as indorser, and that the note was good as indorsed by him, and all right without that. In Coddington v. Davis, (1 Comst. 186,) a waiver of “protest” was held to include the demand of payment and notice to the party to be charged, upon the ground that the term “protest,” in a popular sense, and as used among men of business, included all the steps
Allen, Mullin and Morgan, Justices.]