Seldner v. Mount Jackson National Bank ( 1887 )

Robinson, J.,

delivered the opinion of the Court.

The appellee is the holder of a promissory note for $3500, dated March 5th, 1885, drawn by G-. S. P. Triplett, and payable four months after date to the order of L. Seldner & Son. The note was endorsed by L. Seldner & Son and discounted for them by the Merchants’ Bank ’ of Baltimore, and was sent to appellee Bank for collection» A few days before its maturity, the appellee wrote to the chief clerk of the firm of L. Seldner & Son in regard to the payment of the note, and on the 8th July, 1885, the day of its maturity, received the following telegram:

“If G-. S. P. Triplett will meet his note due to day, he can draw on me for the amount.

L. Seldner.”

On the afternoon of the same day, the appellee received another telegram as follows:

“Have learned that Triplett is away from home. If he has not left draft with you, you will please pay note and save protest, you can draw on me. Answer.

L. Seldner.”

As requested, by this telegram, the appellee paid the note for and on account of L. Seldner & Son, and on the same day drew a draft on them, which was retured “unpaid.” Afterwards at his request the appellee drew a draft on L. Seldner which was also returned “ unpaid.”

This suit is brought by the appellee, against Eva Seldner and Lippman Seldner, her son, partners trading as L. Seldner & Son, to recover the amount due on said note. At the time the note was drawn and endorsed, and discounted by the Merchants’ Bank, the appellant, Eva Seldner and Lippman Seldner were, and for several years prior thereto, had been partners trading as L. Seldner & Son. The partnership however was dissolved by mutual consent in April, 1885, and notice of the dissolution was published sometime in the month of July following, the precise date •of the same, whether before or after the 8th of July, the day of the maturity of the note does not appear. In our view of the. case this is immaterial.

Now a great deal was said about the power of one partner, to bind his copartner, after dissolution of the partnership, and the case was argued on the part of the appellant as if the suit was brought upon a nexo contract made between Lippman Seldner, the settling partner, and the appellee, after the dissolution of the partnership. This however is not the case. The suit is brought on a note endorsed by and discounted for the firm, and upon which all the partners were liable. The appellee was bound of course to give notice of demand and non-payment by Triplett, the maker; and the only questions are, 1st. Whether Lippman Seldner, one of the ■ partners, had the right after dissolution of the partnership, to waive notice of demand and non-payment? and 2nd. Whether the telegrams of July 8th, are to be construed as a waiver ?

That he had the right to waive demand and notice, so long as the partnership continued, is clear; and we see no good reason why the mere dissolution of the partnership, should operate as a revocation of his authority. It operated no, douht, as a revocation of all authority on his part to hind his former partners by new contracts, but it did not revoke his authority to adjust, liquidate and settle the partnership affairs. The note was in the hands of the appellee for collection, and all the holder was required to do, in order to bind Seldner & Son the endorsers was to make demand on the maker, and in default of payment to give notice to the firm or to one of the members of the firm. And if Lippman Seldner, the settling partner, knew the maker was unable, or did not mean to pay the note, and that demand upon him would therefore be useless, he certainly had the power to waive demand and protest and thereby save the note from dishonor. In so doing, he does not make a new contract, nor does he incur a new liability, but merely dispenses with a requirement of the law intended solely for the benefit and protection of the endorser. The precise question before us was fully considered in Darling vs. March, 22 Maine, 184, and it was decided in that case, that a partner had the right after the dissolution of the partnership, and after notice of the dissolution to waive demand and notice.

“ The waiver of demand and notice,” say the Court, “ is but the modification of an existing liability by dispensing with certain testimony, which would otherwise be required. If one of the former partners could not dispense with proofs which might be required at the time of the dissolution, he could not liquidate the accounts, and agree upon balances. To waive demand and notice, and to settle accounts is but to arrange the terms upon which an existing liability shall become perfect, without further proof. In doing this, he does not make a new contract, but acts within the scope of a continuing authority.”

There is a broad distinction between a waiver under such circumstances, and a promise by a partner, made after the dissolution, to pay a debt barred by the Statute of Limitations. The mere waiver of demand and notice does not, as we have said, create a new liability; whereas to permit a partner to renew a debt barred by the Statute as against his. copartners, by an acknowledgment or a promise to pay made after the dissolution, would be to allow him to create a new liability.

The only question then is, whether the telegram of July 8th, is to be construed as a waiver of demand and notice ? And here we may say, it is not necessary, that the waiver should be expressed in totidem verbis, — it matters not what particular language is used, provided it plainly appears, that the endorser meant to dispense with the demand and notice. Fuller vs. McDonald, 8 Greenl., 213; Woodman vs. Thurston, 8 Cush., 157; Emery vs. Hobson, 62 Maine, 578.

It has been held in many cases, that any language calculated to induce the holder not to make demand or protest is sufficient. Moyer & Brother’s Appeal, 87 Penna., 129; Boyd vs. Bank of Toledo, 32 Ohio St., 526. In Sigerdon vs. Matthews, 20 How., 496, where the party told the holder not to protest the note, as it should be paid at maturity, this was held to be a waiver of demand and notice. So in Whitney vs. Abbott, 5 N. H., 378, where the endorser being informed that the maker had failed, told the holder there would be no trouble about it, and that he would pay it. And again in Barker vs. Parker, 6 Pick., 80, where in response to inquiry by the holder, the endorser told him that it would be of no use to call npon the maker, it was held that demand and notice were waived. Other cases could be cited to the same effect.

Now, in this case, Lippman Seldner on the day of the-maturity of the note, telegraphs, that he has learned that Triplett. the maker is away from home, and requests appellee to pay the note and save protest, and draw on him. 'The intention to waive demand and notice could not have been expressed in language more explicit, unless he had said in so many words that he waived, &c., and this was unnecessary.

(Decided 21st January, 1887.)

Some stress was laid upon the fact, that the telegram was signed hy Lippman Seldner, and not in the name of L. Seldner & Son. But it was sent in reply to an inquiry made by .the appellee of L. Seldner & Son, as to the payment of the note, endorsed by the firm, of which Lippman Seldner was a partner. And if he had the right as partner to waive demand and notice, it was altogether immaterial whether it was signed by him or in the name of the firm.

It follows from what we have said that the appellant was ih no manner prejudiced by the rulings below, and the judgment will therefore be affirmed.

Judgment affirmed.