Rogers v. Hackett

Gilchrist, C. J.* The defendant contends that evidence of the state of Weymouth’s property, and of the defendant’s statements respecting it, made at the time of the indorsement, was inadmissible. In support of this position, reference is made to the case of Barry v. Morse, 3 N. H. Rep. 132. That case, however, decides merely, that where a note has been indorsed in blank, parol evidence is not admissible to prove, in a suit against the indorser-, that he agreed to be liable at all events, without demand of the maker and notice of non-payment. The evidence seems to us immatei’ial. It cannot affect the rights either of the holder or of the indorser. And as it is merely immaterial, it furnishes no ground for setting aside the verdict. Hamblett v. Hamblett, 6 N. H. Rep. 333. The defendant also contends that the promise to pay, even if made as alleged, was not negotiable, and could not be transferred by indorsement to the plaintiff. In support of this position, reference is made to the case of Roberts v. Peake, 1 Burr. 323. In that case a note was declared on as if it had contained an absolute promise to pay, whereas it appeared upon the face of it, to have been given on two several conditions. It was held to be a note payable, eventually, upon an uncertain contingency, and not to be a negotiable note, within the act of Parliament, which meant and intended an absolute note, payable at all events. The other question in the case was one of variance between the note and the declaration. There is no [105] thing in the case which supports the doctrine that a promise to pay a note, made by the indorser to the holder, could not be given in evidence by a subsequent indorsee, in a suit against the first indorser. No reason occurs to us why the plaintiff should not avail himself of the evidence. An indorser may waive such a defence or not, as he sees fit. After' having waived it and surrendered it, upon what principle can he reclaim it ? He cannot rely upon this defence as existing or as non-existing, as his caprice or his interest may dictate. There is no need of considering the question whether it could be transferred by indorsement to the plaintiff, for negotiability or non-negotiability cannot be predicated of it. All that can be said of the matter is, that the party has waived the defence, and therefore cannot avail himself of it. It is said that the promise was conditional, and the condition was not shown to have been performed. But we find no evidence of a conditional promise; but, on the contrary, the defendant promised Eastman that he should have the whole amount in eight months. The general rule is, that in order to maintain an action against an indorser, it must be shown that there has been a demand of payment upon the maker, and notice to the indorser. But this may be waived by the indorser; and if he do waive it, knowing that there has been no demand, and promise to pay it, nevertheless he will be bound. Otis v. Hussey, 8 N. H. Rep. 346; Woodman v. Eastman, 10 N. H. Rep. 366. Eastman testified, that the defendant knew by the conversation between them that he had made no formal demand upon Weymouth for the payment of the notes. This is a positive Statement. If the defendant knew this by the conversation, it must have been so stated in the conversation by Eastman; and whether he said in terms, that he had made no demand upon Weymouth, or whether language was used conveying that idea distinctly, but in different words, is immaterial. It is only necessary for the indorser to know that no demand has been made upon the maker; and as we think that appears clearly enough in this case, there must be Judgment on the Verdict. Footnotes [*] Perley, J. having been of counsel, did not sit.