ex vi termini, it imports, according to the understanding of mercantile men, that all the steps to be ordinarily taken are dispensed with.30 The contrary view obtained in Louisiana.31 In Maine, by statute, waiver of demand and notice must be in writing.32

1096. Construction of waivers.-A waiver is not to be construed to extend beyond the fair and reasonable import of its terms. Therefore, a waiver of notice, which is a separate and distinct step from the presentment, is not regarded as waiving the presentment or demand upon the drawee or maker.33 The drawer or indorser may have had confidence that the drawee, acceptor, or maker would honor the bill or note upon its presentment; or the holder may have insisted on not incurring the risk of diligence required in giving prompt notice. Whatever motive may have actuated the waiver of notice, it does not expressly or inferentially extend to a waiver of the demand, and that must be duly

30. Union Bank v. Hyde, 6 Wheat. 572. The following undertaking of the indorser of a promissory note: "I do request that hereafter any notes that may fall due in the Union Bank, in which I am, or may be, indorser, shall not be protested, as I will consider myself bound in the same manner as if the said notes had been, or should be, legally protested," was held by the United States Supreme Court to be ambiguous as to whether it amounted to a waiver of demand and notice, and parol proof was admitted to show that it was the understanding of the parties that the demand and notice necessary by law to charge the indorser should be dispensed with. And it was said by Johnson, J.: "Had the defendant omitted one word from his undertaking, it would have been difficult to maintain the affirmative of this proposition. But what are we to understand him to intend when he says: 'I will consider myself bound in the same manner as if said notes had been, or should be, legally protested?' Except as to foreign bills, a protest has no legal binding effect, and as to them it is evidence of demand, and incident to legal notice. It either, then, had this meaning, or it had none. This reasoning, it may be said, goes no further than to a waiver of the demand; but what effect is to be given to the word 'bound?' It must be to pay the debt, or it means nothing." It was held by the court that, if this reasoning were inconclusive, the evidence admitted proved that it was the real intention of the parties to give this effect to the agreement.

31. Ball v. Greaud, 14 La. Ann. 305; Bird v. Le Blanc, 6 La. Ann. 470; Wall v. Bry, 1 La. Ann. 312.

32. Thomas v. Mayo, 56 Me. 40.

33. Sprague v. Fletcher, 8 Oreg. 367; Voorhees v. Atlee, 29 Iowa, 49; Scull v. Mason, 7 Wright, 99; Buchanan v. Marshall, 22 Vt. 561; Lane v. Steward, 20 Me. 98; Drinkwater v. Tebbets, 17 Me. 16; Berkshire Bank v. Jones, 6 Mass. 524; Backus v. Shipherd, 11 Wend. 629; Story on Bills, §§ 371, 375; Story on Notes, § 272. Contra, Matthey v. Gally, 4 Cal. 62.

made in order to charge the drawer or indorser. The words, "I hold myself accountable, and waive all notice," do not imply an extension of the waiver to the demand; but merely an accountability without notice, leaving the demand still as a condition precedent.34 When time is extended by the waiver, as, for instance, where it is said, "We waive protest and notice, and hold ourselves responsible for payment on a certain future day, to which this note is extended by consent," the waiver applies to all steps of demand, protest, and notice at maturity, and also as to such steps at the prolonged or extended maturity of the paper.

35

§ 1097. Statement of grounds of waiver. The fact that the waiver of protest, demand, or notice states the reasons or grounds of such waiver does not affect it, and where the waiver ran: "Notice, demand, protest, and due diligence waived on account of the war and insurrection," during the late civil war in the United States, it was held absolute upon its face, and that the liability of the indorsers were absolutely fixed by dishonor.36

§ 1098. Parol testimony as to waiver. Where there is a written waiver of demand upon the face of the bill or note, but not of notice, it may be shown by parol testimony that there was also a verbal waiver of notice, and so where there is a written waiver of notice a verbal waiver of demand may be proved. If a waiver of both the conditions (of demand and notice) may be proved by parol, we are aware of no good reason why that kind of proof should be excluded to show a waiver of one condition where a waiver of the other is made a part of the indorsement itself.37

§ 1099. Whether guaranty is waiver. Any language which implies a guaranty renders the party using it a guarantor, and consequently such party is not entitled to demand and notice as such guarantor. But it has been held that the words "surety" or security," 38 or "backer," placed after an indorser's name,

" 39

34. Burnham v. Webster, 17 Me. 50.

35. Blanc v. Mutual Nat. Bank, 28 La. Ann. 921. To same effect, see Forster v. Jurdison, 16 East, 105; Ridgeway v. Day, 13 Pa. St. 288. And does not qualify his original indorsement nor release his liability thereunder. Seward v. Derrickson, 12 Wash. 225, 40 Pac. 939.

36. Neal v. Wood, 23 Ind. 524 (1864).

37. Drinkwater v. Tebbets, 16 Me. 17; Mills v. Beard, 19 Cal. 161; Edwards on Bills, 635. See ante, § 1093.

38. Bradford v. Corey, 5 Barb. 461, Paige, J.

39. Seabury v. Hungerford, 2 Hill, 80.

is no waiver of demand and notice, on the ground that they were intended to secure to the parties the privileges of sureties as well as of indorsers. The authority of these cases, however, is

doubted.

40

"accountable," "eventually accountable," "1

41

" 42

imply a waiver

And

The expressions, and “hold ourselves responsible for payment,' of demand and notice, and so does the word "holden." 43 where an indorser wrote, "I assign the within note to J. T., and hold myself responsible for the payment of the same, the maker to have two years to pay the same, unless he prefers to pay sooner — interest on the same to be paid annually," it was held a waiver of demand and notice.*

44

45

§ 1100. Whether questions of waiver are of law or of fact.Whether particular conversations amount to a waiver or not has been held by the United States Supreme Court to be a question of fact for the jury, and not one of law for the court." But whether or not distinct words used amount to a waiver or not, would be, we should think, a question of law; although, if intermixed with others about which the testimony is not clear and concurrent, it would be a question of fact for the jury to determine whether or not there was a waiver. In Massachusetts, it has been said by Shaw, C. J.: "Though questions of due diligence and waiver were originally questions of fact, yet having been reduced to a good degree of certainty by mercantile usage, and a long course of judicial decisions, they assume the character of questions of law; and it is highly important that they should be so deemed and applied, in order that rules affecting so extensive and important a department in the transactions of a mercantile community may be certain, practical, and uniform as well as reasonable, equitable, and intelligible." 46

40. 1 Parsons on Notes and Bills, 579.

41. Turber v. Caverly, 42 N. H. 74; McDonald v. Bailey, 14 Me. 101; Burnham v. Webster, 17 Me. 50.

42. Blanc v. Mutual Nat. Bank, 28 La. 922. See Small v. Clarke, 51 Cal. 227.

43. Bean v. Arnold, 16 Me. 251; Blanchard v. Wood, 26 Me. 358; Bray v. Marsh, 75 Me. 452.

44. Airey v. Pearson, 37 Mo. 424.

45. Union Bank v. Magruder, 7 Pet. 287. See Carmichael v. Bank of Pennsylvania, 4 How. (Miss.) 567; Jones v. Roberts, 191 Pa. St. 152, 43 Atl. 123; Bank v. Urich, 191 Pa. St. 556, 43 Atl. 354.

46. Creamer v. Perry, 17 Pick. 332; Northwestern Coal Co. v. Bowman, 69 Iowa, 153, citing the text.

§ 1101. Laches of a holder by delay may be waived, but the waiver should be distinctly proved. Where a draft was drawn in Ohio on New York, on July 10, 1857, and before presentment was lost; and on August 10th the drawer gave the holder another precisely similar, post-dated July 10, 1857, and wrote across it "duplicate," and the latter presented it on August 14th, and was refused payment, the drawees having failed the day before — it was held that the second draft was given as a substitute for the first, and to take its place, and that the plaintiff's delay was fatal.47

SECTION II.

SPECIAL WAIVER AFTER THE EXECUTION OF THE BILL OR NOTE.

§ 1102. The waiver may not only be written upon the bill or note by the party at the time he signs it, but as well at any time before maturity; and when made after the execution of the instrument, no new consideration is necessary to support it.48 All that the holder contracts to do in order to bind the indorser is to use due diligence in making presentment and demand of payment of the acceptor or maker, and in giving the indorser notice in the event of his default. Due diligence, in the absence of any agreement or understanding between the parties, fixes the time within which such presentment must be made and notice given; but when the indorser himself relaxes the rule, due diligence requires no more than that his own terms be complied with.

§ 1103. As to waiver before maturity by conduct, act, or agreement. Any act, course of conduct, or language of the drawer or 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 by the parties to that effect, will dispense with the necessity of tak

47. Benton v. Martin, 40 N. Y. 345.

#

*

48. Wall v. Bry, 1 La. Ann. 312, Slidell, J., saying: "The indorsement of the defendant was made some months anterior to the indorsement and signature of the waivers. The defendant urges that it was not binding, because made without consideration. The plea that the waiver was without consideration cannot avail the defendant. It was made before the maturity of the note; the holder may have regulated his conduct, in not protesting the note, by the defendant's waiver, confiding in it; and to relieve him from it now would be sanctioning a breach of good faith, and permitting that party to gain by his own disingenuousness." Robinson v. Barnett, 19 Fla. 670, 45 Am. Rep. 26, citing the text; Story on Notes, § 271.

49

ing these steps, as against any party so dealing with the holder.50

And even though a statute requires the waiver of demand and notice, to be valid, must be in writing, it has been held that the course of conduct of the indorser may be such as will estop him from denying that the note was duly protested.51

54

55

Where the party told the holder eighteen months before maturity not to protest it, as it should be paid at maturity, it was held a waiver of demand and notice.52 So where the indorser informed the holder that the maker had absconded, and requested forbearance.53 So where, on the first day of grace, the indorser requests time, and says that an arrangement will be made, notice. is waived; so where the drawer, or the indorser,56 informs the holder that the bill will not be paid, or that he cannot pay it when due, it is a waiver of demand, protest, and notice. So where the drawer of a bill tells the holder to hold it without presentment an indefinite time, he takes the risks of the drawee's solvency; and if he fails in the meantime the want of presentment is excused.57 So where the indorser of a note tells the holder to let it run and he will pay it when called for.58 So where the drawer told the holder that his residence was immaterial, and that he would inquire whether the bill was paid.59 Where a mere request was made

49. Boyd v. Bank of Toledo, 32 Ohio St. 526, approving text. See also Moyer's Appeal, 87 Pa. St. 129; Glaze v. Ferguson, 48 Kan. 157, 29 Pac. 396, quoting text; State Bank of St. Louis v. Bartle, 114 Mo. 276, 21 S. W. 816. 50. Tailer v. Murphy Furnishing Co., 24 Mo. App. 420.

51. Hallowell Nat. Bank v. Marston, 85 Me. 488, 27 Atl. 529; Markland v. McDaniel, 51 Kan. 350, 32 Pac. 1114.

52. Sigerson v. Mathews, 20 How. 496. But a mere promise to pay at maturity, at the time of an indorsement in blank, has been held not to imply a waiver of demand and notice. Isham v. McClure, 58 Iowa, 515; Freeman v. O'Brien, 38 Iowa, 406. No arrangement between the maker and holder can affect the rights of the indorser as to notice. Applegarth v. Abbott, 64 Cal. 459; Story on Notes, 291.

53. Leffingwell v. White, 1 Johns. Cas. 99.

54. Gove v. Vining, 7 Metc. (Mass.) 212; Cady v. Bradshaw, 116 N. Y. 191, citing the text.

55. Minturn v. Fisher, 7 Cal. 573.

56. Hunter v. Hook, 64 Barb. 468.

57. Sheldon v. Chapman, 31 N. Y. 644. 58. Hale v. Danforth, 46 Wis. 555.

"He

59. Phipson v. Kneller, 1 Stark. 116, Lord Ellenborough saying: thereby takes upon himself the onus of making inquiry and dispenses with notice." See ante, § 1094; 2 Ames on Bills and Notes, 469; Benjamin's Chalmers' Digest, 199.