Edwards v. Tandy , 36 N.H. 540 ( 1858 )

Eastmak, J.

In order to maintain an action against the indorser of a promissory note, the general rule is that it must be shown that there has been due demand of payment upon the maker, and seasonable notice given to the indorser, of the nonpayment. The contract of the indorser is a conditional one, and unless the proper and legal steps are taken to hold him, he is discharged.

An indorser may, however, waive his right to avail himself of such discharge; and if, having full knowledge of the circumstances upon which he might claim the discharge, he sees fit, notwithstanding, to make a promise to pay the note, that promise ■will be a waiver of the light to set up tbe defence, and will bind him. Otis v. Hussey, 3 N. H. 343; Whitney v. Abbott, 5 N. H. 378 ; Woodman v. Eastman, 10 N. H. 359; Rogers v. Hackett, 21 N. H. (1 Foster) 100.

But in order to sustain an action upon this ground, the plaintiff must prove that the defendant has made a new promise, and that this was done with a full knowledge of the facts which show that he was discharged. The burden of proof is upon the indorsee who brings the suit. Farmington v. Brown, 7 N. H. 271; Woodman v. Eastman, 10 N. H. 359; Carter v. Burley, 9 N. H. 572; Merrimack County Bank v. Brown, 12 N. H. 325 ; Trimble v. Thorn, 16 Johns. 152; Martin v. Winslow, 2 Mason 241.

An indorser may, also, before the note falls due, make a parol agreement to waive demand and notice; and such an agreement will obviate the necessity of showing a demand and notice, and he will be charged. Whitney v. Abbott, 5 N. H. 378; Boyd v. Cleveland, 4 Pick. 525; Barker v. Parker, 6 Pick. 80.

The burden is upon the plaintiff to show such waiver in like manner as when there is a new promise after the note falls due.

No demand and notice were shown in this case, but there was evidence tending to prove a waiver by the indorser, both before and after the maturity of the note. There was, also, evidence contradictory of these facts; and the court charged the jury substantially according to the rules which we have laid down, and which must be understood to be the law in this State.

We do not understand the instructions to have gone to the extent contended for by the plaintiffs’ counsel. The case shows that no question was raised at the trial as to the defendant’s knowledge of the law.

Judgment on the verdict.