Rasberry v. . West

Pee Cubiam. The appellant presents the single question whether the extension of time alleged to have been given by the defendant to the principal in the note without the knowledge or consent of the plaintiff released her as surety on the note and entitled her to a cancellation of the mortgage on her land. The defendant argues that the question must be given a negative answer for two reasons: (1) The plaintiff is bound by the waiver of notice appearing on the face of the note; (2) the signer of a note, though known to the payee to be a surety, is not discharged under the negotiable instruments law by an extension of time to the principal granted without the knowledge or consent of the surety. A waiver of notice is generally binding on the party who makes it. Shaw v. McNeill, 95 N. C., 535; Bank v. Johnston, 169 N. C., 526; Exchange Co. v. Bonner, 180 N. C., 20; Taylor v. Bridger, 185 N. C., 85. In her brief the appellant makes no reference to the waiver of notice of an extension of time, but we assume the position to be that as it was written- “across the left-hand edge of the note” it is not to be considered a part of the contract. We understand the law to be otherwise. The principle is thus stated in 3 R. C. L., 866, sec. 50: “It is well settled that anything written or printed on a negotiable instrument prior to its issuance relating to the subject-matter of the instrument, and tending to restrain or qualify it, must be regarded as part of the contract-intended to be evidenced thereby, and is to be given due weight in its construction. The force of words and memoranda on commercial paper is not to be determined by the part of the instrument upon which they may chance to be written. It cannot be material where the memorandum is found, whether on 'the front or on the back of the instrument, or above or below the signature.” In Shaw v. McNeill, supra, it was said that the words “no protest” written on the margin of a draft must have been put there with an object; that is, to dispense with the notice of presentment and refusal to pay, and that otherwise it would be unmean *409 ing. It is generally held that marginal notations placed on a bill or note at tbe time it is executed, witb tbe intention of making tbem a part of tbe contract, must be construed witb tbe body of tbe instrument and become a substantive part of tbe bill or note. 8 C. J., 191, sec. 323; Annotation, 13 A. L. R., 251; Walters v. Rogers, 198 N. C., 210; Fitts v. Grocery Co., 144 N. C., 463; Bank v. Couch, 118 N. C., 436. Tbe plaintiff cannot disregard tbe express provision of ber contract and thereby procure tbe discharge of her note and tbe cancellation of ber mortgage. No error.