Smith v. Trickey
24 Me. 539
| Me. | 1845

The opinion of the Court was by

Shepley J.

The facts stated in this case show, that the residence of the defendant had been established in the town of Cape Elizabeth for a great number of years. And that he had no place of business elsewhere for about five years before the note was made, or since that time. That there was no post-office in that town ; and that letters directed to persons residing there were usually delivered to them from the postoffice in the city of Portland, that being the most convenient postoffice for such persons. That a notice was made out for the defend*541ant in duo form on the last day of grace by the cashier of the Casco Bank, in which the note was left for collection, and handed to the messenger, who on the same day deposited it in the postoflice in Portland, directed to the defendant at Westbrook. The notice would of course be sent to Westbrook, where the defendant did not reside ; and there is no evidence to prove, that it was ever received by him. It is not contended, that he could be charged by such a notice. The plaintiff claims to charge him on the ground, that he had waived or dispensed with demand and notice by a written agreement made with the bank. The agreement appears to have been prepared to be signed by those, who transacted business with the bank; and it was signed by the defendant several years before the note, on which this suit was brought, was made. That agreement contains three distinct clauses or stipulations. By the first clause, the signers agree, that notes, bills, acceptances and other securities, to which they were parties, discounted or left for collection in that bank, should be considered as made payable at the bank. The defendant by this clause waived a presentment of the note to the makers at Westbrook. But the clause does not dispense with a notice to himself. By the second clause the signers “ further agree, that notices left at the places set against our names shall be considered legal and binding on us.” There was no place set against the name of the defendant. As the bank was not informed of any particular place, to which notices for him should be sent, it is insisted, that it amounted to a waiver of notice. A person, who was willing to agree to the first and last clauses, and was not willing to designate any place, where notices for him should be left, might properly sign the agreement without inserting any place against his name. It would then truly exhibit the intention. If the bank was not satisfied to deal with him upon such terms it should have required him to insert a place against his name. If a place had been designated, a notice left at that place would have been sufficient. The omission to designate a place left the parties in a condition to insist upon their legal rights, so far as it respects the place to which notice should be sent.

*542The third and last clause of the agreement is a waiver of presentment for payment to all persons residing out of Portland and first liable on the paper. The signers hold themselves to be liable to pay such paper although no demand has been made upon such persons for payment. But there is no waiver of a notice to themselves in this clause, that payment has not been made according to agreement. It has for a long time been the settled law, that'a waiver of demand is not a waiver of notice. The case does not show, that the defendant was legally notified, or that he waived notice; and the action cannot be maintained.

Plaintiff nonsuit.