Cram v. Sherburne , 14 Me. 48 ( 1836 )

The opinion of the Court, after a continuance nisi, was drawn up by

Weston C. J

We entertain no doubt it was within the discretion of the Judge, at the time he did, to allow the 'plaintiff to amend his declaration, by filing a new count for money had and received; and that exceptions do not lie, upon the exercise of such a discretion.

The law is very clearly settled, as is conceded by tire counsel, that if tire drawer promise to pay, with a full knowledge of all the facts, notwithstanding laches in the holder, he becomes legally liable. Such a promise by the defendant, with such knowledge, has been found by the jury. It is, however, insisted, that there is no evidence, that the defendant knew, that the plaintiff had been guilty of laches; and that therefore the Judge was not justified in leaving it to the jury to find such knowledge. ' We think otherwise. The defendant knew that no notice had been given to him that the note was not paid, until a month after it was 'drawn, although it was , payable in three days. And his conduct is evidence, that he knew the order had not been demanded at its maturity; for he himself undertook at that túne, to make the demand for the plaintiff of the drawer, who declined to pay it. He knew this demand was unseasonable, notwithstanding which, be expressly promised the plaintiff to pay him the amount of the order. The demand made by the defendant, was either made by him, as the agent of tire plaintiff, the holder, or it is evidence that he undertook to do it himself, waiving his right to require, that it should be done by the plamtiff. And in either case, it is evidence by necessary implication, of a waiver of notice of nonpayment from the plaintiff.

It is further urged, that the plaintiff, having averred demand and notice, was bound to prove it. In Taunton Bank v. Richardson et al. 5 Pick. 436, the Court held, that waiver of notice is equivalent to actual notice, and is properly proved on the allegation of actual notice. Upon the same principle, there seems to be no sufficient reason, why proof of waiver of demand should not be regarded as equivalent to proof of demand. Rut it is not necessary to give an opinion upon this point; as we are satisfied that upon the facts, the plaintiff is entitled to recover, upon the count for money had and received.

Exceptions overruled.