Keyes v. Winter

Kent, J., This action is not barred by the statute of limitations. After deducting the time of the absence of the defendant from the State, after the cause of action accrued against him, we find that the term during which the statute ran is less than six years. R. S.. c. 81, § 114. [401] It is also clear that no demand and notice was given in fací, so as to charge the indorser. The only question is whether there was a waiver of such demand aud notice by the defendant. The evidence on that point is, that the defendant applied to the plaintiff for a loan of money; that he first offered the note of his brother Elisha Winter, but the plaintiff declined it, as he did not consider his brother in a condition to pay it. Defendant then asked plaintiff what security he must give him. Plaintiff replied, that if he would get his brother’s note for what he owed him, and put his name to the back of it, and leave it with him, and give his word upon honor, that if his brother did not pay it he would, he would let him have it. Defendant said he was willing to give his word, and said, "I expect tobe holden for the money, if I get it.” Defendant then requested the plaintiff, if lie took the note proposed, that he should agree to wait on him, aud not sue him at present; 'saying that his brother would probably pay the interest. The plaintiff said he could wait a year or two, and perhaps more, but would not agree to wait three years. Defendant then said, "well, then, wait as long as you can, and, if my brother does not pay you, 1 will.” The note in suit was delivered on this agreement, and the money paid by the plaintiff to the defendant. It is now too well settled to be questioned, that a waiver of demand and notice may be proved by parol, or may be inferred from acts and circumstances. According to numerous cases in this State and Massachusetts, the facts in this case clearly make out such a waiver. Indeed, mmy of the cases present a state of facts much less conclusive and imperative than those before us. Fuller v. McDonald, 8 Maine, 213; Lane v. Stewart, 20 Maine, 98; Fullerton v. Randlett, 27 Maine, 31; Boyd v. Cleaveland, 4 Pick., 524; Taunton Bank v. Richardson, 5 Pick., 436. The defendant contends that there has been such delay and neglect and laches, that the plaintiff should be estopped from recovering. This would be the result, doubtless, if [402] demand and notice were required to be proved. But they have been waived, and the case stands relieved of the requirement. In such a state of the case, there can be no neglect or laches, in not doing what is not required. The defendant borrowed the plaintiff’s money and agreed to be holden to pay, without action on the part of the lender. It was his duty to see that the note was paid, — and, if there is any laches, it is in his neglect to do what both law and justice required him to do. Judgment for plaintiff for amount of note and interest. Appletoet, C. J., WaltoN, Barrows, DaNFORth and Tapley, JJ., concurred.