Moyer's Appeal

Mr. Justice Trunkey

delivered the opinion of the court,

To correctly interpret the letter of April 6th 1871, it is well to keep in view the then positions of the parties to the notes. Joseph K. Bauman was the maker and E. P. Moyer & Bro. were the holders. The notes of same date, for like time, for same amount, and one was given and held as collateral security for the other. The one given for the debt was payable at the First National Bank; the other at Lancaster, the place where both were made. The latter Was payable to Jer. Bauman, who endorsed it to the holders. In legal computation of time, the notes matured on April 7th 1871, but that being a public holiday, by virtue of the statute (Pamph. L. 1869, p. 26), the holders could make demand and give notice on that, or the preceding day, at their option. The one held for the debt was protested on the 6th. The same day Jer. Bauman writes from Lancaster, where both were payable, to E. P. Moyer & Bro., Philadelphia: “I am sorry to say that Joseph was compelled to let his note go to protest, for which you hold mine as collateral.” He knew the other note was the one owing by the maker, that it was protested, and that his own endorsement was held as collateral security. With full knowledge of the facts, thus explicitly stated, he adds, “ How can I arrange the matter with you, as I am not prepared to pay it right away.” Was that a trick to fend protest of the collateral, or was it an acknowledgment of liability and request for forbearance ? Surely the latter. In the light of the circumstances how can his words admit of other interpretation ? But were his meaning doubtful he himself gave the key to unlock it, in his subsequent letters recognising his liability. January 10th 1872, he wrote, “I will not give my notes, but will endorse as heretofore, if it will be of any service to you.” Again he wrote that the assignee of J. K. Bauman would make distribution about the 1st of September; adding, “I will then endeavor to arrange the matter with you.” April 7th 1873, he wrote that he had failed to raise funds and was not prepared to pay. These letters, though not containing an express acknowledgment or promise, show how he understood his relation to Moyer & Bro. after April 6th 1871. They are not the language of one who denied a claim, or had intended to mislead the holder into a false belief that he would pay the note. The act of Jer. Bauman, on the day of the protest of J. K. Bauman’s note, must be considered as an admission of his liability to the holder and promise to pay it.

Was such act a waiver of demand and notice? “ In strictness of terms a waiver of protest is an agreement made before or at the time of maturity of the note, and a promise to pay after maturity, notwithstanding there had been no protest, is a new undertaking.” Per Agnew, J., Uhler v. The F. N. Bank, 14 P. F. Smith 406. Yet, not adhering to strictness of terms, in Sherer v. The Easton Bank, 9 Casey 134, it is said: “ that a subsequent promise to pay the note by an endorser, who has full knowledge of all the facts, amounts to a complete waiver of the want of due notice, is settled, and settled as matter of law. So does a part payment.” The promise need-not be expressed in so many words. It is sufficient, if by reasonable intendment and interpretation, the language imports, or naturally implies, a promise to pay it. Story on Prom. Notes, § 364. After maturity of the note, words or acts which would not be sufficient to amount to a waiver, or new undertaking, may be amply sufficient to form a strict waiver, when uttered or done before or at maturity, for the obvious reason that in the latter case the holder may be misled. Demand and notice may be waived by an act of the endorser or drawer, calculated to put the holder off his guard, and preventing him from treating the note as he would otherwise have done. A parol promise to pay, made at the time of, or subsequent to, the endorsement; a request by the endorser for forbearance; a declaration by the endorser of a check to the holder, that the maker can pot pay, that the latter has made an assignment and has therein preferred him; an inquiry by the holder of the endorser, on the day the note matured, if it would be best to call on the makers, and reply that it would be of no use; respectively have been held as waiver of demand and notice. No general rule can be laid down as to what words or acts will amount to a waiver, except they must be such as fairly to lead a reasonable man to believe that the en: dorser did not wish the regular course, in making demand and giving notice, to be pursued. Unless such be the direct and natural inference from the words or acts, and they be so clear and pointed as to leave no reasonable doubt as to what was intended, they are not within the rule: 1 Parsons on Notes and Bills 582-594.

Whether a promise, request or acknowledgment was made, and whether made with full knowledge of all the material facts, are questions of fact. The construction to be put on facts found is a question of law. An auditor’s finding of facts will not be set aside, save for strong reason. As already appears wre accept the auditor’s report of facts, except his inference that there was no waiver of pro? test. He seems to have regarded the letter of May 6th 1871, as if subject to principles applicable to matters occurring after maturity of the note, and written in ignorance of the facts. Without recapitulation, we are impelled to a different conclusion, upon which the claim of E. P. Moyer & Bro. should be allowed.

Decree reversed at costs of appellees, and record ordered to be remitted to the Orphans’ Court for further proceedings. ’ " •