Sheldon v. Horton , 1868 N.Y. App. Div. LEXIS 134 ( 1868 )

By the Court, Gilbert, J.

We are of opinion that the case was correctly disposed of at the circuit. Any act of » the indorser, calculated to put the holder off his guard, and prevent him from treating the note as he would otherwise have done, is, in judgment of law, a waiver of demand and notice. (Phipson v. Kneller, 1 Stark. 116. Leffingwell v. White, 1 John. Cas. 99. Spencer v. Harvey, 17 Wend. 489. Bruce v. Lytle, 13 Barb. 167. Taylor v. French, 4 E. D. Smith, 458. Amoskeag Bank v. Moore, 37 N. H. Rep. 539. Ridgway v. Day, 13 Penn. R. 208. Barclay v. Weaver, 19 id. 396.)

Phipson v. Kneller was this. Three days before the bill became due, Kneller, the drawer, upon inquiry made by the holder, told him that the bill, when due, would not be paid by the acceptor, and said he would not give his own address, but would call in a few days and inquire whether the bill had been paid or not. Lord Ellen-borough held that “ no legal proposition can be more clear than that, when a party says, my residence is immaterial, I will inquire whether the bill is paid, he thereby dispenses with notice.”

In Leffingwell v. White, the indorser called on the holder just before the note became due, and proposed to give ' his own note for' the amount, which was assented to, and during the negotiation between them, the note fell due. It was held that the pending negotiation dispensed with demand and notice. In Spencer v. Harvey, the indorser wrote .to the. holder, a few days before maturity, stating that the maker had failed, acknowledging his liability and asking indulgence. This was held to be a waiver of demand and notice. In Bruce v. Lytle, it was held that a promise made by the indorser to the holder, the day before the note fell due, that “ he would be up there three or four days afterwards, and pay the note and take it up,” was sufficient to dispense with demand and notice. In Amoskeag Bank v. Moore, the' indorser, a few days before the maturity of the note, signed the following agreement at the foot of the note: “ Septbr. 25, 1855. We hereby agree that the above note may be extended for sixty days from this date.” It was held that no-demand was necessary.

[Kings General Term, December 19, 1868.

In Ridgway v. Day, the holder wrote to the indorser before maturity, informing him that the maker could not probably pay, and offering to extend the time of'payment, and the indorser replied he was “ willing to extend the time for thirty days longer, and of course will stand responsible for the payment of the note as originally intended.” Held a waiver of all demand and notice. In Barklay v. Weaver, the same effect was given to a parol agreement to extend the time of payment.

In the case before us, the holder told the defendant sixteen days before the note fell due, that the maker wanted the note to remain another year, and asked him if he was willing. The defendant replied, that he was willing to let. it remain, and at the same time took the note and looked it over, and said it was a good note. After such an arrangement for extending the time of payment, a demand and notice would have been useless, and in contravention of the object and intention of the parties. And it is contrary to good faith, to set up as a defense a want of demand and notice, which had been caused by the forbearance of the plaintiff.

The judgment and order denying a new trial should be affirmed, with costs.

Lott, J. F. Barnard, Gilbert and Tappen, Justices.