Baskerville & Whitfield v. Harris , 41 Miss. 535 ( 1867 )

Ellett, J.,

delivered the opinion of the court.

Error to the Circuit Court of Lowndes county.

We are of opinion that the following instruction asked by the plaintiffs in error, (the defendants below), and refused by the court, ought to have been given, to wit:

If the jury believe from the evidence, that the note sued on was endorsed to the plaintiff in June, 1862, and that the plaintiff failed to make any demand of payment of Lockhart, the maker, from that time up to the year 1866; and shall further believe from the evidence, that the waiver of demand and notice was not written above said endorsement, until January, 1866, and that such waiver was then written by Baskerville & Whitfield without a knowledge of the facts of the laches of the plaintiff, said Baskerville & Whitfield are discharged, and the jury will so find in their verdict.

This instruction was pertinent to the facts proved, and contained a correct statement of the law. Upon the endorsement of the note after its maturity, without the waiver, it became the duty of the plaintiff, within a reasonable time, to make demand on the maker for payment, and, if not paid, to give notice to the. endorser. The facts being ascertained, this reasonable time was a question of law for the court to decide. The subsequent endorsement of the waiver on the note, operated as a promise by the endorsers to pay, and such a promise will not be binding unless made with full knowledge of the fact that demand and due notice had not been given.

The verbal understanding at the time of the endorsement, that Baskerville & Whitfield were to endorse and be liable for the payment of the note, cannot have the effect to change the character and extent of the liability cast upon them by the law, in consequence of the endorsement. When a party endorses a note in blank, he undertakes to pay only on certain conditions, which the law defines and annexes to his engagement, and these are not liable to be modified or changed by parol evidence.

The third of the instructions refused is liable to the same observations as the first; the others appear to have been correctly refused.

The judgment will be reversed, and the cause remanded for a new trial.

Judge Harris did not sit in this case.