Lockwood v. Bock , 50 Minn. 142 ( 1892 )

VaNdebbtjRgh, J.

The question of defendant’s liability as indorser upon the notes sued on is raised on the pleadings. Defendant was the payee, and indorsed and transferred the notes to the plaintiff. It is not alleged in the complaint that any demand of payment was made or notice of dishonor given, but it is alleged that the defendant expressly waived in writing indorsed on the back of each of the notes, “protest and notice of protest.” Defendant in his answer admits the waiver to have been indorsed by him in the form stated, but alleges that it was made without' consideration, and after the maturity of the notes.

It is now well settled that no new consideration for a waiver, made after maturity, is necessary. It is held to be, in effect, a waiver of a condition precedent to the liability of the indorser, and such condition may be waived or dispensed with by the indorser as well after as before maturity. 2 Daniel, Neg. Inst. § 1147a; Worden v. Mitchell, 7 Wis. 167; Yeager v. Farwell, 13 Wall. 13. Where, as in this ease, the waiver is, in express terms, made on the note by the indorser, it is to be construed like any other instrument, so as to give effect to the intention of the parties as expressed by the language used, (2 Edw. Bills & N. §§ 850, 851;) and the language used in this case shows that the defendant intended to waive, and did waive and dispense with, the condition of demand and notice which he might otherwise have insisted on. Wolford v. Andrews, 29 Minn. 251, (13 N. W. Rep. 167.)

(Opinion published 52 N. W. Rep. 391.)

It will also be construed a waiver without proof of extrinsic facts in respect to his knowledge of the absence of previous demand and notice. In the case of an express waiver, there can be no question of his intention, or any presumption, in the first instance, that it was made under a mistake of facts, and a misapprehension of his legal rights in the premises.

There was no abuse of discretion by the trial court in refusing the amendment to the answer. .

Judgment affirmed.