Roberts v. Bank of Parrott

Stephens, J. 1. The right of an indorser on a promissory note to set up the defense that he has been discharged by the failure of the holder to give him notice of the protest of the note for nonpayment, as required by the Civil Code (1910), § 4280, or that he has been discharged by reason of an agreement between the maker and the holder to extend the time of payment, in consideration of the maker giving additional security, may in the opinion of the jury, have been waived, where the holder, within a reasonable time, informed him of the fact of nonpayment by the maker and of the taking by the holder of additional security, and the indorser silently acquiesced in what the holder had done and made no objection thereto, and when he afterward assumed liability as indorser by entering into an agreement with the holder whereby he (the indorser) obtained [725] possession of the note for the purpose .of foreclosing a mortgage contained in the note, and actually foreclosed the mortgage and caused the property to be levied upon for the debt. Decided September 15, 1923. J. II. Fletcher, W. E. Gurr, for plaintiff in error. Yeomans & Wilkinson, contra. 2. The evidence authorized the inference that the indorser had waived his defenses as above indicated, and the verdict finding him liable to the holder of the note was authorized. Judgment affirmed. Jenhins, P. J., amd Bell, J., concur.