Harrison v. Bailey , 99 Mass. 620 ( 1868 )

Hoar, J.

It has been settled by a series of decisions, in this Commonwealth, that, in an action by the indorsee against the indorser of a promissory note, evidence of a waiver of demand and notice is sufficient to support an averment in the declaration of demand and notice. The case most expressly to the point is Taunton Bank v. Richardson, 5 Pick. 436, 444; but the doctrine is supported by Jones v. Fales, 4 Mass. 245; City Bank v. Cutter, 3 Pick. 414; North Bank v. Abbot, 13 Pick. 465; Kent v. Warner, 12 Allen, 561. Professor Greenleaf refers to the prac tice in these terms: “ When matter in excuse of the want of demand and notice is relied upon, it is usual to declare as if there had been due presentment and notice, some latitude in the mode of proof being allowed, and the evidence being regarded not strictly as matter in excuse, but as proof of a qualified presentment and demand, or of acts which, in their legal effect, and by the custom of merchants, are equivalent thereto.” 2 Greenl. Ev. § 197. See also 2 Stark. Ev. (4th Am. ed.) 274, note 1; Norton v. Lewis, 2 Conn. 478; Williams v. Matthews, 3 Cowen, 252. So an express promise of the indorser to pay the note, with full knowledge that no regular demand and notice have been made and given, is evidence of a waiver. 2 Greenl. Ev. § 190. Martin v. Ingersoll, 8 Pick. 1. Creamer v. Perry, 17 Pick. 332. There was evidence tending to show a waiver on the day the note became due; and evidence that the defendant afterward promised to pay it was certainly corroborative evidence to the same effect. As it was admitted only as evidence of waiver, it is unnecessary to consider what validity it would have had as a new promise; or whether it would have been insufficient to sustain the action from want of consideration, or under the statute of frauds.

The provisions of the Gen. Sts. c. 129, do not affect the sufficiency of the declaration. By § 2 it is required that “ the substantive facts necessary to constitute the cause of action be dated with substantial certainty.” They are so stated. But the law allows certain evidence to be given in support of the allegation of a demand and notice, and the rules of evidence are not altered by the new practice, except so far as special provision is made therein. § 81. Exceptions overruled.