Parshley v. Heath

Barrows, J. Since the passage of the Stat. of 1868, c. 152, now embodied in B. S., c. 32, § 10, no waiver of demand and notice by an indorser of any promissory note or bill of exchange is valid uuless it is in writing, signed by such indorser or his lawful agent. The note here sued bears the following indorsements: “ Waiving demand and notice, C. B. Mahan, agent, Granite Agricultural Works, Lebanon, N. H. “S. Heath.” We think that where the first indorser of a piece of negotiable paper, instead of restricting his written waiver of demand and notice to himself, uses language which may fairly be understood to apply to all the successive parties, those who merely append their naked signatures beneath his must be held to adopt the written waiver and be bound by it. Writing such a waiver above his own signature by an early indorser, without the knowledge and consent of subsequent indorsers, has been held in this state to be a material alteration of their contract which vitiated it altogether. Farmer v. Rand, 14 Maine, 225. If either indorser desired to make his contract differ from that which a natural construction of the words preceding his signature would import, it would be easy for him to exclude himself from their operation by placing before bis own signature the words “ requiring demand and notice,” or something equivalent. If he neglects this, the fair presumption is that he intends to adopt the language of the previous signer and make the same contract. If it should be regarded as competent for the indorser, upon the strength of certain decisions touching the character of the contract evidenced by a blank indorsement, to go into parol evidence to rebut the presumption naturally arising from the appearance of his signature under such an indorsement, this case is barren of any testimony tending that way. On the contrary, if parol evidence on the point is admissible to reinforce the presumption, it is [92] clear that a man of the known and approved probity and intelligence of Solyman Heath never would have held such language as he did to the plaintiff to induce her to receive the note for his accommodation unless he fully intended to adopt the waiver and make himself and his estate holden for the note, provided the plaintiff had it at the place where it was payable- when it fell due, and the maker failed tó pay it. Jxidgment for. plaintiff for the amount of the note, and interest from September 1, 1875. Appleton, O. J., Walton, Danforth, Peters and Libbey, JJ., concurred.