Lane v. Steward

The opinion of the Court was delivered by Si-iepley J. The defendant being the payee and holder of two negotiable promissory notes indorsed them to the plaintiff, “ good to Joshua Lane or order without notice.” This cannot be considered a contract of guarranty. It is in substance an engagement to be accountable as indorser without notice. And such a contract does not dispense with a demand upon the maker. Burnham v. Webster, 17 Maine R. 50; There was a partial payment actually made by the maker on the day it became due, on the note for one hundred and fifty dollars; and it authorizes the conclusion, that it was duly pre [103] sented for payment; and notice of it being waived the plaintiff’s right to recover is established. To prove a waiver of demand upon the maker and a promise to pay the other note, the plaintiff introduced testimony, “ that at the time of the indorsement of the notes declared on, the defendant said, if Sargent did not pay the notes, when they became due, he would.” And that the witness “ heard the plaintiff ask the defendant to pay the note for $440, after it became due, and the defendant requested the plaintiff to commence an action against Sargent, and said, if he could not collect it of Sargent, he would pay it.” It has been decided, that parol testimony to prove a waiver does not contradict the written contract between the indorser and holder, but only shews, that the party had waived one of the conditions of it. Taunton Bank v. Richardson, 5 Pick. 436. And that when the language of a written waiver was equivocal, “ the sense, in w’hich the parties used the words, in which they express themselves, may fairly be sought in the practical exposition furnished by their own conduct or the conventional use of language established by their own customs or received opinions.” Union Bank v. Hyde, 6 Wheat. 576. And that a promise to pay, if not paid by the other parties when due, made by an indorser at the time of indorsing, may be regarded as a waiver of a demand upon the maker. Boyd v. Cleveland, 4 Pick. 525; Fuller v. M’Donald, 8 Greenl. 213. These cases authorise the admission of the testimony and a conclusion from it, that the defendant waived a demand upon the maker. It is contended, that the plaintiff, by releasing the property attached, and by arresting the maker on execution and taking a statute bond discharged the defendant; especially when it was done for a valuable consideration received. One of the points decided in Page v. Webster, 15 Maine R. 258, was, that a release of property attached did not discharge an indorser. If the plaintiff’ had a legal right to release the property attached, the indorser cannot be injured or justly complain, that he received a payment from the debtor as a consideration for its exercise. If any money were in fact received he might [104] claim to have it applied in part payment. By causing an arrest of the body and taking the bond provided by the statute he only elected to pursue one of the remedies, which the case afforded. And he cannot be considered as giving time to the principal by taking a bond on six months ; for the time was determined by the law and not by the plaintiff. The offer of the debtor to convey his house, and the refusal of the plaintiff to deceive it as security, did not discharge the indorser. He cannot impose upon the holder the burden and risk of taking security and giving day of payment, which would deprive him of the right to resort to the indorser. The notes were free from usury between the original parties; and it was decided, in French v. Grindle, 15 Maine R. 163, that a sale at a greater discount than legal interest did not in such case prove the transaction to be usurious. The plaintiff, according to the rule established in that case, can recover from the defendant, of whom he purchased, only the amount which he paid with interest. - . . • Judgment for the plaintiff.