Evans v. Comins

Sayre, J. Section 8214 provides that notice of dishonor may be waived expressly or by implication. Waiver of demand and notice must be clearly shown. Second National Bank of Cleveland v. McGuire, 33 Ohio St., 295. The necessity to give notice of dishonor is dispensed with by such conduct on the part of the indorser toward the holder of negotiable paper as is calculated to put a person of .reasonable prudence off his guard or to induce him to omit to give such notice. Boyd v. Bank of Toledo, 32 Ohio St., 526. It appears from the testimony that Nelson W. Evans for several years had been selling notes to Kate and Alice Comins and attending to the collection of the principal and interest, and that he said he would look after these particular notes. However, it does not clearly appear whether it was before maturity or afterward, when he said he would look after the Copeland notes, as the last conversa [91] lion in which he said he would look after them was some time after the notes were due. It is not clear that Nelson W. Evans, before the time when demand and notice should have been given, agreed to look after the collection of these particular notes; but from the long course of similar transactions, in negotiating notes to Kate and Alice Comins and collecting the principal and interest, they clearly had a right to expect that he would undertake the collection of the Copeland notes. By such conduct, and without notice to the contrary, he did undertake to “look after the notes.” His promise to collect the notes is clearly implied from the situation of the parties, as shown by the evidence of Ann Comins. He thereby took upon himself the duty of collecting the notes, which included the duty to take the necessary steps required by law to make an indorser liable. Ele thereby relieved the holders from the duty to make demand and give notice of dishonor. It became his duty to do what the law required Kate and Alice Comins to do, that is, to make demand and give notice of dishonor. If he had made demand,, as he was bound to do under his arrangement with them, he would have had notice of dishonor. If he did not receive such notice it was because he did not do his duty. So that neither he nor his estate could take advantage of his failure to do his duty. By taking upon himself the duty to collect the notes he clearly waived notice of dishonor. Torbert v. Montague (Cal.), 87 Pac. Rep., 1145; Bryant v. Wilcox, 49 Cal., 47. The judgment will be affirmed. Walters and Jones, JJ., concur.