Marshall v. Mitchell , 35 Me. 221 ( 1853 )

Wells, J.

— The object and purpose of notice to an indorser is, that he may take measures to indemnify himself, when a fruitless demand has been made upon the maker. If the indorser has security in his own hands fully equal to his liability, he can suffer no loss by the want of demand and notice, and therefore he has been held liable in such case, without proof of those facts. Mead v. Small, 2 Greenl. 207; Corney v. Mendez Da Costa, 1 Esp. 301; 3 Kent’s Com. 113. And if the security is taken before the maturity of the note, it cannot be material whether it was before or after its negotiation. In either case it furnishes an indemnity.

No instruction to the jury was requested upon the effect to be given to the loss of the security. Nor does it become necessary to decide upon the duty of the defendant in relation to it, for the case is not submitted for decision upon the facts, but upon the legal questions raised.

It is contended, that the agreement on the part of the defendant with Merrow, the maker of the notes, to take back the shop, which was the consideration for them, and take up the notes, could have no effect unless it was executed. But that part of the agreement, which relates to taking up the notes, would induce Merrow to refrain from making any preparation to pay them, and he would not expect a demand of payment to be made on him. It was equivalent to saying to him, that he need not pay the notes, but they should be paid by the defendant. And in case they were to be paid by the defendant, there could be no necessity for the plaintiff to call on the maker, or to give notice to the defendant.

A promise at the time a note is negotiated to take it up, if not paid by another party, has been held a waiver of notice. Boyd v. Cleveland, 4 Pick. 525.

The promise of the defendant several months before the note was due, made to the maker, that he would take it up, was a fact of which the plaintiff had a right to avail himself. He could safely repose upon such promise, although not made to himself, with the expectation it would be performed, and forbear to do those acts, which, if the defendant’s promise were fulfilled, would be rendered entirely unnecessary. It is not for the defendant to say, after he has made the promise, that the plaintiff should not have relied upon it. Any holder of the note might justly infer from such promise a waiver of demand and notice. When the indorser says to the maker, he will pay the note, it is a declaration that the other parties need not give themselves any trouble in relation to it. This language would justify their inaction. It excuses a call upon the maker to do what the indorser himself has agreed to perform, and as he has taken upon himself to act for the ihaker, he would know whether the action had been completed.

It is not necessary to determine whether the agreement to take back the shop would be valid if unexecuted, as that to take up the notes is sufficient to authorize a jury in finding a waiver of demand and notice. Andrews v. Boyd, 4 Metc. 434. Exceptions overruled.

Shepley, C. J., and Howard and Hathaway J. J., concurred.