not there is a street in the village bearing its name. If there is, inquiry at that number would have disclosed the error. If there is not, the entry was sufficiently odd and peculiar to make the notary's alleged understanding that the figures meant number of acres owned in Canandaigua inexcusable without some further inquiry. Prior to the act of 1857 service upon the indorser residing in the same town at his place of business therein was required. The change permitting instead a service by mail was carefully guarded and limited. Where the notary relied upon a "reputed" residence he was required to act from "the best information obtained by diligent inquiry." Merely looking into a directory is not enough. The sources of error in that process are too many and too great. Such books are accurate enough in a general way. and convenient as an aid or assistance, but they are private ven tures, created by irresponsible parties and depending upon infor. mation gathered as cheaply as possible and by unknown agents. Their help may be invoked, but, as was said in Lawrence v. Miller' (16 N. Y. 231), their error may excuse the notary, but will not charge the defendant. Merely consulting them should not be deemed "the best information obtained by diligent inquiry." (Greenwich Bank v. De Groot, 7 Hun, 210; Baer v. Leppert, 12 id. 516). These cases differ somewhat in their facts, but clearly indicate that bare reliance upon a directory is not sufficient diligence, and that should certainly be the rule upon facts such as are disclosed in the present case.

The judgment should be affirmed, with costs.
All concur.

Judgment affirmed.

AGREEMENTS TO WAIVE STRICTLY CONSTRUED.

§ III.

Freeman v. O'Brien (1874), 38 Iowa 406.

Appeal from Johnson Circuit Court.

This action is brought on a promissory note, against William O'Brien as maker, and Michael Cash as indorser thereof. The defendant Cash demurred to the petition. The court sustained the demurrer and plaintiff appeals. The further facts are stated in the opinion.

Williams & Ewing, for appellant.
Boal & Jackson, for appellee.

MILLER, Ch.J.-The note upon which suit is brought is negotiable. It is alleged that before the maturity thereof it was indorsed in blank by Michael Cash, the payee thereof, to the plaintiff, and that the indorser had notice of the dishonor of the same; that demand for payment was made and refused after the note matured, and that notice in writing of such demand was given to Cash about four years after the maturity of the note. It is further alleged in an amendment to the petition that plaintiff hought the note from Cash, paying him the full amount thereof; that at the time of the indorsement and transfer of the note it was orally agreed between the parties that "the plaintiff should not sue on said note but wait until defendant O'Brien could pay said note, or until Cash should give notice to commence action on said note;" that at numerous times between the transfer of the note and the commencement of this action, "Cash has notified plaintiff not to push or distress said O'Brien and at all times assured plaintiff that he as indorser would stand good for the payment of said note;" that "on or about the time of the maturity of said note plaintiff gave notice of the same to O'Brien who nevertheless failed to pay the same;" that at or about the day of the commencing of this suit, Cash came to plaintiff and notified him that he would not stand good any longer for said note unless plaintiff should at once commence an action to recover the amount of said note, and on the same day plaintiff took steps to commence this action.”

The court sustained a demurrer to the petition as amended, which ruling is assigned as error.

1. It is conceded that the plaintiff did not, upon the maturity of the note, make due demand upon the maker of the note, and give due notice to the indorser of the failure to pay by the maker. It is claimed, however, that the indorser waived the necessity of demand and notice required by the commercial law in order to fix an absolute liability upon him, and that he is therefore liable, notwithstanding the failure to make due demand and give due notice.

Appellant urges that the verbal agreement, alleged to have been made at the time of the transfer of the note to plaintiff, to the effect that plaintiff should not sue the maker, O'Brien, until he could pay or until the indorser should notify plaintiff to sue, operated as a waiver of demand and notice. It seems clear to us that this would be giving to this alleged agreement a meaning and effect far beyond its scope, and not within the contemplation of the parties. The agreement that suit was to be delayed, by no

means exonerated the plaintiff from the duty of making demand upon the maker at the maturity of the note, and from giving the indorser due notice of default in payment. These acts were necessary to fix an absolulte liability upon the indorser, and they could be done without infringing upon the agreement to delay suit on the note. There is no inconsistency between the agreement alleged and the duty to make demand and give notice.

The substance of the alleged agreement is that if, at the maturity of the note, the maker was not able to pay, the plaintiff was not to sue until he was able, or until the indorser gave notice that he should sue. From the terms of the agreement it is reasonably clear that it was contemplated by the parties that demand of payment should be made upon the maker of the note at maturity, else how was it to be known whether he was able to pay or not. It is equally clear that in case of the refusal of the maker to pay on demand, the indorser was, under the agreement, entitled to notice, so that he could determine whether or not to require the plaintiff to sue.

2. It is further alleged that Cash constantly after the indorsement assured plaintiff that he would stand good for the payment of the note. It is claimed that this agreement or assurance operated as a waiver of demand and notice. Agreements of this sort are always construed strictly and are never extended beyond the fair import of the terms used. (Berkshire B'k v. Jones, 6 Mass., 524; Central B'k v. Davis, 19 Pick., 373; Union B'k v. Hyde, 6 Wheat., 572; May v. Coffin, 4 Mass., 341; Backus v. Shipherd, 11 Wend., 629). If the alleged assurance or promise to stand good was made prior to the maturity of the note, it would be an undue extension of its terms to hold that the indorser intended thereby to stand good for the payment of the note absolutely, notwithstanding plaintiff should fail to make demand and give him notice of non-payment. An understanding as follows: "I do request that hereafter any notes that may fall due at the Union Bank, on which I am or may be indorser, may not be protested, as I will consider myself bound in the same manner as if the same had been legally protested," was held in Union Bank v. Hyde, supra, to be so ambiguous and doubtful whether it was intended thereby to waive demand and notice, that further proof of such intention was required. In that case there was doubt as to the intention of the party, and under the rule of strict construction further evidence was demanded. In the case before us the language used does not approach near enough to a waiver to become doubtful.

Under the allegation in the petition the assurances or promises to stand good were made after the maturity of the note as well as prior thereto. It is well settled that an indorser of a negotiable instrument may waive the objection of a want of due presentment and notice, by a promise to pay the same made after default, but in order to make such a waiver binding "it must be clearly established and deliberately made after a full knowledge of the facts," and it will not be presumed or implied from doubtful circumstances, or sudden acknowledgments, or hasty expressions. (Ballin v. Betcke et al., 11 Iowa, 204; Allen v. Harrak, 30 Iowa, 363; Story on Prom. Notes, § 275, and notes; I Parsons on Notes and Bills, 601). The law will not infer that an indorser, who promises to pay the note after maturity, had knowledge that it was not duly presented. (Abbott v. Striblen, 6 Iowa, on p. 197). The party alleging the promise must also allege and prove that it was made with a full knowledge of the fact that the promisor was released from legal obligations to pay the same. (Ballin v. Betcke et al., supra). In the case before us there is no allegation that the indorser, at the time of the alleged promises, made after the maturity of the note, had knowledge that the note had not been duly presented to the maker for payment at maturity and payment thereof refused. There is indeed no allegation that he had any knowledge whatever in respect to the fact of presentment. The judgment of the Circuit Court will be

Affirmed.

EXCUSE OF NOTICE, TEMPORARILY OR PERMANENTLY. §§ 114-115. Windham Bank v. Norton. (See page 384.)

Pier v. Heinrichshoffen. (See page 392.)

WHERE NOTICE NEED NOT BE GIVEN TO INDORSER.

§ 117.

In re Swift. (See page 400.)

Am. Nat. Bank v. Junk Bros. (See page 420.)

§ 139.

LIABILITY OF DRAWEE RETAINING THE BILL.

Westberg v. Chicago Lumber & Coal Co. (1903), 117 Wis. 589. See § 3-4.

Appeal from a judgment of the Circuit Court for Bayfield County: JOHN K. PARISH, Circuit Judge. Reversed.

Action upon a negotiable bill of exchange drawn upon the defendant in favor of the plaintiff by the Lien-Neally Lumber Company for $585, alleged to have been accepted by the defendant. The answer was a general denial. The evidence disclosed that the Lien-Neally Company, sawmill owners, had purchased from the plaintiff certain legs or stumpage amounting to $585; that they had sold product of their mill, including that of these logs, to the defendant, and were in the habit of making orders and drafts upon the latter for money to pay their various bills. About April 21st, upon plaintiff's application for payment, they made out an order upon the defendant substantially as follows:

"To Chicago Lumber & Coal Co.:

"Please pay to John Westberg five hundred eighty-five (585) dollars for logs delivered at Bibon as per contract.

"[Signed] LIEN-NEALLY LUMBER CO."

They had plaintiff write his name on the back of it, and then Mr. Lien mailed that order, in connection with other orders and time-checks aggregating some $2,000, to the defendant, accompanied by a letter the contents of which are not disclosed. The defendant's representative denied any memory of the order or draft in favor of the plaintiff. It was proved, however, that he sent to the Lien-Neally Company the money for the other orders inclosed in the same letter. Plaintiff never heard from the defendant, but made repeated applications to the Lien-Neally Company for payment, and was put off from time to time by promises, until finally they refused to pay, saying he must look to the defendant. At that time the defendant had paid drafts of that company to more than the amount of the indebtedness to it, and refused to pay this. The plaintiff's draft never was returned to him.

On the trial, a special verdict being requested, the court submitted but one question, namely, whether the defendant received this draft on or before April 23d, which was answered in the affirmative, and thereupon the court found that the plaintiff delivered that order for acceptance on or before April 23d;