Woodman v. Thurston , 8 Mass. 157 ( 1851 )

Dewey, J.

The express waiver of demand and notice written over the signature of the indorser dispensed with the necessity of any demand.

The further inquiry is as- to the proper instructions to be given to the jury upon the other branch of the case. And upon that point we are of opinion, that if the note of Samuel T. Hazard was obtained at the instance and request of the makers of the note in suit, or by any one acting as their agent, and for their accommodation, and as an inducement to the defendant to extend the time of his liability, and to be held by him as collateral security for the defendant’s indorsement of the note in suit; and the said note of Hazard, when procured, was in fact delivered to him for such security, who thereupon indorsed such second note to Williams, the holder and in* dorsee of the first having made an agreement with him to extend the time of payment of the first note to the period when the second would become due; in such case the payment to Williams of the note of Hazard would operate as payment of the first note, so far forth as to discharge the defendant from all further liability thereon, and the first note, if in force at all for any purpose, would only be so as against the maker thereof.

The jury should have been further instructed, that the agreement of the defendant to deliver up the first note to Hazard, as shown by the evidence, was to be considered an agreement to deliver up the note to Hazard, that he might avail himself of any remedy against the maker. If this were not so, the defendant would have no benefit as collateral by the note of Hazard, but made himself liable over to Hazard for the full amount of the note given by Hazard.

Without considering particularly the further question of the inefficacy of the defendant’s promise to deliver to Hazard the first note, upon the payment by Hazard of the second, by reason of the want of any consideration for such promise, the court are of opinion that the case should have been put to the jury under different instructions upon the effect of the original agreement made with the defendant, as to the Hazard note, and also as to the effect of payment of the Hazard note to Williams in discharging the defendant as indorser of the first note. New trial ordered.