Brower v. Rupert

Walker, J. The record in this case fails to show a sufficient notice to the drawer, of a protest of these bills for non-payment, to support the averments in the special counts. But the law is well settled that the drawer may waive notice, or when he has no funds in the hands of the drawee at the maturity of the bill, a notice of protest is not required to fix his liability. Story on Bills, 75; Chit, on Bills, 325. When he has failed to provide funds to meet the bills, he can have no reason to suppose they will be honored, nor is there any necessity that he should have notice, as he has no funds in the hands of the drawee to be protected. When he has failed to provide funds to meet his draft, he has placed himself in the same situation as if he had expressly waived notice. The evidence in this case shows that the plaintiff in error had provided no funds to meet these bills, and that he stated that he cared nothing for notice, as he expected them to be protested. It also appeared that he was repeatedly notified by the drawee that he must provide funds to protect these bills, which he neglected to do. The question is then presented, whether this authorized a recovery under the common counts. While cases may be found which hold that a waiver of, or an excuse for not giving notice, cannot be proved under the common counts, still the current of modern decisions both in Great Britain, and this country, sanctions the practice. This is the rule of the American cases. And we think, under our practice, which requires a copy of the instrument sued upon to be filed, as notice of what the defendant is required to meet, there can be no surprise produced by this evidence under the common counts. He is thus apprised that he is sued upon the bill, drawn by himself, and he must know whether notice has been waived, or any legal excuse exists for not giving it, and he can as fully prepare to meet the case as if the excuse was averred in the declaration. We have no doubt that these bills, and the evidence, were admissible under the common counts, and that the verdict and the judgment below, were warranted by the evidence. The judgment of the court below is affirmed. Judgment affirmed.