defendant at the city of Washington, on or about the 9th day of January, 1891, in which it was claimed that the defendant admitted his liability, made some futile excuses for nonpayment, and offered to settle the claim of the bank by the payment of a smaller amount.

The defendant testified on his own behalf, that he had indorsed the note in this city; that he had no recollection of seeing and did not observe the printed words on the back of the note at the time of the indorsement of the note by him or before the note was protested; and that the only notice of non-payment of the note by the maker was a notice of protest dated on the 4th day of October, 1890. He gave an account of the negotiations between him and the attorney for the bank on the 9th of January, 1891, somewhat different from that which was given in the testimony for the plaintiff, yet with no very substantial variation. And he also proceeded to give testimony of another and previous negotiation between himself and the bank in November of 1890, conducted on his behalf by an attorney in Portsmouth, who offered in settlement to pay the sum of $1,500 and interest, if the bank would look for the residue of the claim to Hadley as the first indorser.

Upon this testimony the court instructed the jury to render a verdict for the defendant, which was accordingly done and judgment was entered thereon. The plaintiff duly excepted to the ruling of the court, and brought his case here on appeal.

Mr. A. A. Birney and Mr. Mason N. Richardson, for the appellant, cited Lewis v. Brehm, 33 Md. 412; Martin v. Ewing, 2 Humph. (Tenn.) 561; Thornton v. Wynn, 12 Wheat. 183; Loose v. Loose, 36 Pa. St. 538; Good v. Martin, 95 U. S. 92; Bank v. Ewing, 78 Ky. 266; Paishley v. Heath, 69 Me. 90; Farmer v. Rand, 14 Me. 225; Lavrey v. Steele, 27 Ind. 168; Bryant v. Bank, 8 Bush, 43; Tiedeman Com. Paper, 364, and cases cited; Reynolds v. Douglass, 12 Pet. 497; Levy v. Peters, 9 S. & R. 125; Lane v. Steward, 20 Me. 98; Curtis v. Martin,

20 Ill. 557; Dixon v. Elliott, 5 C. & P. 644; Croxin v. Worthem, 5 M. & W. 5; Spencer v. Harvey, 17 Wend. 489; Leffingwell v. White, 1 Johns. 99; Tibbotts v. Dond, 23 Wend. 179.

Mr. J. Hale Sypher and Mr. Robert Christy for the appellee:

1. It is disclosed by the record and admitted by counsel that the notice of dishonor of the note sued on was irregular and of no force or effect in law. To overcome the failure to make demand and serve notice of dishonor at the maturity of the note, as required by law, plaintiff sets up an alleged waiver printed on the back of the note, in these words: "Liable without demand or notice."

The indorsed waiver was printed in very small type on the back of the note, and was not observed by the appellee when he wrote his name on the back of the note below that of Hadley, already written thereon. His attention was not called thereto, nor did he intend that his indorsement should relate thereto. He did not so intend, and did not by presumption of law waive any right or privilege belonging to him as such indorser.

2. If the printed words on the back of the note constitute a waiver, they were exhausted by the indorsement of Hadley, and defendant is in no sense bound by them. Tiedeman on Commercial Paper, 364; Daniel on Neg. Inst. p. 136, Sec. 1092d. See also Whitehouse v. Hanson, 42 N. H. 9; Daniel on Neg. Inst., p. 645, Sec. 715; Bryant v. Bank, 8 Bush, 43; Smith v. Lockridge, 8 Bush, 423; Bank v. Ewing, 78 Ky. 266; Lowery v. Steele, 27 Ind. 170; Bryant v. Lord, 19 Minn. 397; Woodman v. Thurston, 8 Cush. 157; Bank v. Davis, 19 Pick. 373; May v. Broisseau, 8 Leigh, 164; Duffy v. O'Connor, 7 Baxter, 498; Halley v. Jackson, 48 Md.; Duvall v. Bank, 7 Gill & J. 44; Spencer v. Harvey, 17 Wend. 489.

Mr. Justice MORRIS delivered the opinion of the Court:

Three questions were presented for our consideration: 1st.

Whether the appellee, Wilson, was bound by the printed waiver of demand and notice on the back of the note; 2d. Whether his subsequent negotiations did not amount to an acknowledgment of liability and a waiver of any right that he might previously have had to insist upon demand and notice; 3d. Whether, in any event, the case should not have been left to the jury to determine the question of fact of waiver. Besides these principal questions, it was also insisted on the part of the appellee that there was a material alteration of the note after its return by the appellee subsequently to its indorsement by him, the alleged alteration consisting in the erasure of the words, " and grace." And it was suggested, rather than argued, that the printed words on the back of the note might likewise have been placed there after the appellee's indorsement.

This last suggestion we regard as entirely without foundation. It is in itself improbable; and there is no proof whatever to justify it. The appellee testifies that he does not recollect to have seen those words at the time of his indorsement; but that is not testimony from which the perpetration of a fraud by the bank could be inferred. For the result of such suggestion and of the appellee's testimony is to impute such fraud to the bank. The testimony is utterly insufficient to justify any such inference. We must assume that those words were on the back of the note at the time of the appellee's indorsement, and that if the appellee did not see them, it was his own negligence, which he should not charge upon the bank. Although in small print, they are plain, distinct and perfectly legible; and such words are not unusual in notes intended to be discounted by banks which use such forms.

Neither can we regard the claim that the note was altered after indorsement by the erasure of the words "and grace" as entitled to any serious consideration. It is not shown by any testimony when this erasure was made. There is no presumption of law that it was made after the indorsement.

And, in any event, it is no alteration whatever of the legal effect of the note. Without these words, the note, by the general mercantile law, by the law of New Hampshire and by the law of the District of Columbia, was entitled to days. of grace. To permit these words to remain in the note would have added nothing whatever to its effect; to take them away would have detracted nothing from it.

The important question in the case is, whether the appellee, by his indorsement, adopted the printed waiver of demand and notice that appeared over the two signatures on the back of the note, and in pursuance of such waiver can be held liable without the usual demand and notice required to fix the liability of indorsers. It is argued on behalf of the appellee that the waiver applies only to the first indorser, Hadley. On behalf of the appellant it is claimed that the waiver applied to both Hadley and the appellee. Both on reason and on authority we have no hesitation in holding that the appellant's claim is well founded.

Indorsement of negotiable paper implies a contract well defined by the mercantile law-a contract to the effect that the indorser will pay and satisfy the amount of money stipulated in the note, if the maker of the note or the person primarily liable does not pay it, provided demand is promptly made upon such person at the date of the maturity of the paper and due notice of non-payment is thereupon given to the indorser. The contract is a conditional contract implied by law from the action of the parties; and it is well settled law that the condition may be waived by the person or persons entitled to its performance, either by express stipulation to that effect or by action or a course of conduct inconsistent with the right to demand such performance. When the waiver enters into the contract at its inception, it is as much a part of the contract as anything else that appears therein and is entitled to have equal effect with the remainder of the contract. And it is of no consequence in this regard whether the waiver appears on the face or on

the back of the instrument. If there are express words anywhere upon the paper constituting a waiver of the condition of demand and notice and intended to operate as such, they will be given effect as such. This doctrine is not controverted by either party, and could not, of course, be seriously questioned. The controversy here is whether the express waiver of demand and notice which appears on the back of this note was intended to apply, and did in fact apply, to both of the indorsers, or only to the first indorser Hadley.

That any indorser might modify his own liability without affecting the liability of other indorsers or their rights, if he does it at the time of making the indorsement, must be conceded, because it is nothing more than an elementary principle of law. It is very plain that the first indorser might, by express words annexed to his indorsement, waive his right to demand and notice; and that the right of any subsequent indorser to have such demand and notice would not be affected thereby. The question of the extent and application of the waiver is one to be determined by the nature of the words and the circumstances of the parties. Now, no reasonable man can suppose for one moment that, in the case of such notes as that here sued on, with reference to which counsel for the appellee repeatedly stated in argument that it was the custom of this bank, as of many banks, to require two indorsers, a printed contract of waiver should be resorted to in order to modify the liability of the first indorser alone, or of one of the two indorsers. Plainly the intention of the bank was to require all persons who should become parties to the paper by indorsement to assent to the waiver of demand and notice. And equally plain is it that any person who becomes a party to such a note by indorsement and subscribes his name to a printed waiver of demand and notice, intends to adopt the printed formula as part of his contract.

There is good reason to hold, as several authors and text writers do, that if the waiver on a promissory note is made