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§ 115. Where notice must be sent.

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a. Statutory provision.- The Negotiable Instruments Law provides as follows: "Where a party has added an address to his signature, notice of dishonor must be sent to that address; but "if he has not given such address, then the note must be sent as "follows:

"1. Either to the post-office nearest to his place of residence, or "to the post-office where he is accustomed to receive his letters; or 2. If he live in one place, and have his place of business in "another, notice may be sent to either place; or

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3. If he is sojourning in another place, notice may be sent to the place where he is so sojourning.

"But where the notice is actually received by the party within "the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section.” 20

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b. Sufficiency of address.- Ordinarily an address upon a notice which contains the name of the indorser, with the town and State, is sufficient, although the street and number is omitted.21 But this would not be so where the indorser had added to his indorsement the designation of his street and number.22 Where there are towns of the same name in different States the indorser will not be charged with notice where it is deposited in the post-office without the name of the State, and it reaches him a long time after the dishonor.23 A notice addressed to an indorser to the county where he lives is insufficient where there are several post-offices in such county.24 A mistake in the name of the post-office to which the notice is sent is not inoperative where it appears that the postoffice is as well known by one name as another.25

§ 116. Waiver of notice.

a. In general. The right to a notice of dishonor belonging to a party to a negotiable instrument may, like the right to a demand of payment of the party primarily liable, be waived by such party. 26 The effect of a waiver of notice is to dispense with such

20. Neg. Inst. L. (N. Y.), § 179. For the same section in statutes of other States see Appendix.

21. Morse V. Chamberlain, 144 Mass. 406, 11 N. E. 560; True v. Collins, 3 Allen (Mass.), 438; Benedict v. Rose, 16 S. C. 629.

22. Bartlett v. Robinson, 9 Bosw. (N. Y.) 305, affd. in 39 N. Y. 183.

23. Beckwith v. Smith, 22 Me. 125, 38 Am. Dec. 290.

24. Bank of Illinois v. Taylor, 7 T. B. Mon. (Ky.) 576.

25. Bank of Geneva v. Howlett, 4 Wend. (N. Y.) 328.

26. Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16, 10 L. R. A. 545; Robinson v. Barnett, 19 Fla. 670, 45

notice as a condition precedent to the liability of a party. We have already considered in another chapter the principles affecting the waiver of demand of payment by the party whose right it is to require that such demand be made; and many of these principles are equally applicable to a waiver of a notice of dishonor.28

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b. How waiver of notice may be made; statutory provision. The Negotiable Instruments Law provides that: I Notice of dis"honor 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." 29 This is the same as a provision of the English Bills of Exchange Act, from which it evidently was derived.20

c. Waiver after omission to give notice.-Accurately speaking, there can only be a waiver of demand and notice by an indorser before the maturity of the instrument; nevertheless the indorser can waive due proof of the demand and of the fact that the instrument has been dishonored, or what is more to the purpose, he can so act toward the holder of the instrument as to render the fact that demand was not made or notice was not given wholly immaterial.31 It is not usual to distinguish between a waiver made before or after the maturity of the instrument; it can be made in one case as well as in the other.32 If an indorser, with full knowledge of the laches of the holder in neglecting to protest a bill or note, unequivocally assents to continue his liability, or to be responsible as though the protest had been made, he will be held to have waived the right to object, and will stand in the same position as if he had been regularly charged by presentment, demand, and notice.33 This assent must be clearly established and will not be inferred from doubtful or equivocal acts or language. It has been frequently held that a promise by an indorser to pay the note or bill after he has been discharged by a failure to protest

Am. Rep. 24; Hoadley v. Bliss, 9 Ga. 303; Pollard v. Bowen, 57 Ind. 232; Emery v. Hobson, 62 Me. 578, 16 Am. Rep. 513; Taunton Bank v. Richardson, 5 Pick. (Mass.) 436; Kyle v. Green, 14 Ohio, 490; Barclay v. Weaver, 19 Pa. St. 396, 57 Am. Dec. 661; Power v. Mitchell, 7 Wis. 161.

27. Emery v. Hobson, 62 Me. 578, 16 Am. Rep. 513.

28. See ante, § 101 (d).

29. Neg. Inst. L. (N. Y.), § 180. For same section in statutes of other States see Appendix.

30. English Bills of Exchange Act, 1882, § 50 (2b).

31. Yeager v. Farwell, 13 Wall. (U. S.) 6, 20 L. Ed. 476; Hoadley v. Bliss, 9 Ga. 303.

32. Yeager v. Farwell, 13 Wall. (U. S.) 6, 20 L. Ed. 476; Rindge v. Kimball, 124 Mass. 209; Hobbs v. Straine, 149 Mass. 212, 21 N. E. 365; Matthews v. Allen, 16 Gray (Mass.), 594; Harrison v. Bailey, 99 Mass. 620; Third Nat. Bank v. Ashworth, 105 Mass. 503.

33. Ross v. Hurd, 71 N. Y. 14.

it, will bind the indorser provided he had full knowledge of the laches when the promise was made.34 The presumption is, where a new promise is made to pay the instrument after its maturity, by the indorser or drawer that due notice of its dishonor was given to him.35 Where an indorser writes to the holder of a note on the

34. Knowledge of laches must be shown, and the new promise after the omission to give the notice must be made unequivocally. See the following cases:

United States.- Sigerson v. Matthews, 20 How. 496, 15 L. Ed. 989; Thornton v. Wynn, 12 Wheat. 183, 6 L. Ed. 595.

Alabama.- Kennon V. McRea, 7 Port. 175.

California.- Curtis v. Sprague, 51 Cal. 239.

Georgia.-Chamberlain v. Stowe, 24

Ga. 310.

Illinois. Givens v. Merchants' Nat. Bank, 85 Ill. 442; Kupfer v. Galena Bank, 34 Ill. 328, 85 Am. Dec. 309; Toby v. Burly, 26 Ill. 426; Walker v. Rogers, 40 Ill. 278, 89 Am. Dec. 348.

Indiana.- Dickerson v. Turner, 12 Ind. 223.

Iowa.- Allen v. Harrah, 30 Iowa, 363; Closz v. Miracle, 103 Iowa, 198, 72 N. W. 502.

Kentucky.- Bank of United States v. Leathers, 10 B. Mon. 64; Landrum v. Trowbridge, 2 Metc. 281.

Maine. Thomas v. Mayo, 56 Me. 40; Byram v. Hunter, 36 Me. 217; McPhetres v. Halley, 32 Me. 72; Hunt v. Wadleigh, 26 Me. 271, 45 Am. Dec. 108.

Maryland.- Turnbull v. Maddux, 68 Md. 579, 13 Atl. 334; Beck v. Thompson, 4 Harr. & J. 531.

Massachusetts.- Hobbs v. Straine, 149 Mass. 212, 21 N. E. 365; Third Nat. Bank of Boston v. Ashworth, 105 Mass. 503; Harrison v. Bailey, 99 Mass. 620, 97 Am. Dec. 63; Arnold v. Dresser, 90 Mass. 435; Matthews v. Allen, 16 Gray, 494, 77 Am. Dec. 430; Low v. Howard, 11 Cush. 268; Franklin Bank v. Freeman, 16 Pick. 539. Michigan.- Newberry V. Trow bridge, 13 Mich. 263.

Minnesota.- Amor v. Stoeckle, 76 Minn. 180, 78 N. W. 1046.

Missouri.- State Bank v. Bartle, 114 Mo. 276, 21 S. W. 816; Harness v. Davis County Sav. Bank, 46 Mo.

357; Workingmen's Banking Co. v. Blell, 57 Mo. App. 410.

New Hampshire.— Norris v. Ward, 59 N. H. 487; Edwards v. Tandy, 36 N. H. 540; Rogers v. Hackett, 21 N. H. 100; Ladd v. Kenny, 2 N. H. 240, 9 Am. Dec. 77.

New Jersey.-Glassford v. Davis, 36 N. J. L. 348; Barkalow v. Johnson, 16 N. J. L. 397.

New York.-O'Rourke v. Hanchett, 89 Hun, 611, 35 N. Y. Supp. 328; Richard v. Boller, 51 How. Pr. 371, 6 Daly, 460; Hunter v. Hook, 64 Barb. 469; Buckley v. Bently, 42 Barb. 646; Bruce v. Lytle, 13 Barb. 163; Tebbets v. Dowd, 23 Wend. 379; Keeler v. Bartine, 12 Wend. 110; Jones v. Savage, 6 Wend. 658; Trimble v. Thorne, 16 Johns. 152; Crain v. Colwell, 8 Johns. 299; Miller v. Hackley, 5 Johns. 375, 4 Am. Dec. 372; Duryee v. Dennison, 5 Johns. 248.

Ohio.- City Nat. Bank v. Clinton County Nat. Bank, 49 Ohio St. 351, 30 N. E. 958.

Oregon.- Johnson v. Arrigoni, 5 Ore. 485.

Pennsylvania.- Oxnard v. Varnum, 111 Pa. St. 193, 2 Atl. 224; Loose v. Loose, 36 Pa. St. 538; Richter v. Selin, 8 Serg. & R. 425.

Rhode Island.-- Glaser v. Rounds, 16 R. I. 235, 14 Atl. 863.

South Carolina.- Oliver v. Brown, 1 Rich. Eq. 62.

Tennessee.-Golladay v. Bank of the Union, 2 Head, 57; Durham v. Price, 5 Yerg. 300, 26 Am. Dec. 267.

In the case of Parks v. Smith, 155 Mass. 26, 28 N. E. 1044, demand of payment of a note was not made at its maturity, and it was held that the plaintiff must show that the defendant, having knowledge that she was discharged of all liability, had renewed her liability by payments or subsequent promises to pay.

35. Breed v. Hillhouse, 7 Conn. 523; Tobey v. Burly, 26 Ill. 426; Ralston v. Bullits, 3 Bibb (Ky.), 261; Lewis v. Brehme, 33 Md. 412, 3 Am. Rep. 190; Harral v. Steinberger, 17

last day of grace, stating that the maker cannot pay but that the indorser held himself responsible, it is a waiver of notice of the dishonor of the note, notwithstanding several days elapsed between the sending and receipt of the letter.36 The new promise must be unequivocal and made with a full knowledge of the nature of the obligation assumed.37 It would not be sufficient for the indorser to simply assert that "he felt himself bound for the payment” of the note or bill.88 As stated by Judge Story:30 "The promise must be unequivocal, and amount to an admission of the right of the holder; or the act done must be of a nature clearly importing a like admission of the right. If it be defective in either respect, if it be a conditional offer of payment unaccepted, then and in such case the holder has no right to insist upon it as a waiver. So if the promise be qualified, it must be received with its qualification, and cannot be insisted on as an absolute waiver." A waiver of due notice of dishonor by the indorser or drawer after maturity may be implied from his acts.40 And where indorsers induced a person to purchase the instrument carrying their names from the holder, after it became due, but did not disclose to the purchaser that they were discharged for want of notice, their silence is equivalent to an affirmation that they were still liable as indorsers, and they will be estopped to set up a want of such notice.

Misc. (N. Y.) 274, 40 N. Y. Supp.
353; Pierson v. Hooker, 3 Johns. (N.
Y.) 68, 3 Am. Dec. 467; Walker v.
Laverty, 6 Munf. (Va.) 487.

36. Yeager v. Farwell, 13 Wall. (U. S.) 6, 20 L. Ed. 476. In the case of Corner v. Pratt, 138 Mass. 446, the indorser telegraphed to the holder to wait until the maker could be seen by the indorser, and he afterward promised to pay the note; it was held to be a waiver of demand and notice. 37. Waiver must be unequivocal. - Laporte v. Landry, 4 Mart. (N. S.) (La.) 125. In the case of Isbell v. Lewis, 98 Ala. 550, 13 South. 335, notice of dishonor was not given an indorser; he said he did not desire to escape legal or moral obligation to pay, but that he had been advised by his attorney that he was under no legal obligation whatever, and he, therefore, asserted that he was under no liability; but he offered to give or indorse a new note for one-half of the old note, or pay one-half thereof, if the bank would release him from all further liability on the paper; both

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these propositions were expressly declined. It was held that the defendant had not waived notice of dishonor. See also Barkalow v. Johnson, 16 N. J. L. 397.

38. Campbell v. Varney, 12 Iowa, 43; Creamer V. Perry, 17 Pick. (Mass.) 332, 27 Am. Dec. 297.

39. Story on Bills of Exchange, § 321.

Where the drawee refused to pay on presentment, and the refusal being communicated to the drawer, he promised the holder that he would arrange with the drawee, so that the draft should be paid, it was held that legal notice of dishonor was waived. Byram v. Hunter, 36 Me. 217; Davis v. Miller, 88 Iowa, 114, 55 N. W. 89. See also Robbins v. Vose, 53 Me. 36; Gove v. Vining, 7 Metc. (Mass.) 212; Quaintance v. Goodrow, 16 Mont. 376, 41 Pac. 76.

40. Staylor v. Ball, 24 Md. 183; Patterson v. Vose, 43 Me. 552; Carson v. Alexander, 34 Miss. 528.

41. Inducements offered by indorser to purchaser of note.- Lib

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payment of an instrument by an indorser is, unless explained and qualified by accompanying circumstances, sufficient evidence of the waiver of the failure to give due and timely notice of dishonor.12 d. Waiver express or implied. The waiver may be either verbal or in writing. 43 A verbal agreement at the time of the transfer of the note by indorsement, dispensing with a demand and notice, forms part of the contract of transfer and binds the indorser." The waiver may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended.45 A promise made by an indorser or drawer, before the maturity of the instrument, that he will pay it, operates as a waiver of notice; because, relying on such promise, the holder may not present the instrument for payment and may neglect to give notice of its dishonor.46 It is not neces

bey v. Pierce, 47 N. H. 309. Where a note has been protested for nonpayment, and the indorsers sell the note without erasing their indorsement, they are estopped by their acts from controverting their liability on the note. St. John v. Roberts, 31 N. Y. 441, 88 Am. Dec. 287.

An indorser of a promissory note who has not been duly notified of the dishonor of the note may so act as to waive his defense upon that ground. And when such indorser, with full knowledge that he has been discharged from liability by failure of such notice, states to the holder of such note that he expects to have to pay it, but requests the holder to try and collect it of the maker, he thereby recognizes his liability to pay the same. Parsons v. Dickinson, 23 Mich. 56.

42. Whitaker v. Morrison, 1 Branch (Fla.), 25, 44 Am. Dec. 627; Curtiss v. Martin, 20 Ill. 557; Washer v. White, 16 Ind. 136; Sigourney v. Wetherell, 6 Metc. (Mass.) 553; Glascow v. Pratte, 8 Mo. 336, 40 Am. Dec. 142; Johnson v. Crane, 16 N. H. 68; Buckley v. Bentley, 42 Barb. (N. Y.) 646: Linthicum v. Caswell, 160 N. Y. 702, 57 N. E. 1115; Shaw v. McNeill, 95 N. C. 535; Levy v. Peters, 9 Serg. & R. (Pa.) 125, 11 Am. Dec. 679; Sherer v. Easton Bank, 33 Pa. St. 134; Knapp v. Runals, 37 Wis. 135.

Payment of interest by a wife, who was an indorser on her husband's note, made by her individual check, but on

account of her husband's liability as maker is not such an acknowledgment of her own liability on the note as to constitute a waiver of notice. Porter v. Thom, 167 N. Y. 584, 60 N. E. 1119. See also Werr v. Kohles, 64 App. Div. (N. Y.) 117, 71 N. Y. Supp. 713.

43. Maples V. Traders' Deposit Bank, 15 Ky. L. Rep. 879; Murphy v. Citizens' Sav. Bank, 22 Ky. L. Rep. 1872, 62 S. W. 1028; Keyes v. Winter, 54 Me. 399; Lane v. Stewart, 20 Me. 98; Field v. Nickerson, 13 Mass. 131; Edwards v. Tandy, 36 N. H. 540; Porter v. Kemball, 53 Barb. (N. Y.) 467; Annville Nat. Bank v. Kettering, 106 Pa. St. 531, 51 Am. Rep. 536.

44. Worden v. Mitchell, 7 Wis. 161. See also Sloan v. Gibbes, 56 S. C. 480, 35 S. E. 408.

45. Cady v. Bradshaw, 116 N. Y. 188, 22 N. E. 371, 5 L. R. A. 557. In this case an indorser before the maturity of a note called upon the holder and requested him to extend the note for another year. To this the holder agreed if the indorser would "let his name be on it and let it be as it was," to which the indorser consented. It was held that this constituted in legal effect a waiver of demand and notice. See also Ticonic Bank v. Johnson, 21 Me. 426.

46. Promise to pay as waiver.See Sigerson v. Mathews, 20 How. (U. S.) 496, 15 L. Ed. 989. In the

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