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agent or servant. As he cannot create an agency, he cannot appoint a servant, and therefore cannot delegate powers to another: See Robbins v. Mount, 4 Rob. (N. Y.) 553, 33 How. Pr. 24; 16 Am. & Eng. Ency. of Law, 2d ed., 308; Cooley on Torts, 2d ed., 128.

The evidence, as disclosed by the record, under the authorities cited, wholly fails to make a case for appellant. In such case it was the duty of the court to direct a verdict: Meyer v. Manhattan Life Ins. Co., 144 Ind. 439, 43 N. E. 848; Russell v. Earl, 10 Ind. App. 513, 38 N. E. 76; Elliott's General Practice, sec. 854.

Appellant offered to prove that appellee's husband came to him and said that his wife wanted some logs cut on her place, and got him (appellant) to assist in cutting them. 185 Over appellee's objection, the court refused to let him so testify. Appellee testified that she directed her husband to have the logs cut and hauled to the mill; that she had him see to the work, and that he did the work under her direction. Upon motion this evidence was stricken out.

The refusal to admit the above offered evidence of appellant, and in striking out the evidence of appellee, to which we have referred, is made the third and fourth reasons for a new trial. As this evidence went to the question of appellee's husband being her agent, it could not have affected the substantial rights of appellant, for the simple reason that appellee was incapacitated from appointing an agent by reason of her infancy. If it be conceded that the evidence was competent, the ruling upon striking it out and in refusing to admit it was harmless, for under the whole evidence, including that which was refused and stricken out, appellant was not entitled to recover: Sutherland v. Cleveland etc. R. Co., 148 Ind. 308, 47 N. E. 624; 2 Burns' Index Digest, p. 613, sec. 8, and authorities cited thereunder.

Judgment affirmed.

An Infant is Liable for his Torts: Churchell v. White, 58 Neb. 22, 76 Am. St. Rep. 64, 78 N. W. 369; Stringer v. Frost, 116 Ind. 447, 9 Am. St. Rep. 875, 19 N. E. 331; monographic note to Craig v. Van Bebber, 18 Am. St. Rep. 720-724.

An Infant's Delegation of Authority, it seems to be generally considered, is void: See the monographic note to Craig v. Van Bebber, 18 Am. St. Rep. 629-633. However, no valid reason is perceived why his contracts of agency should be held void, when his other contracts are voidable merely, nor do we believe such reason exists.

MATCHETT v. ANDERSON FOUNDRY AND MACHINE

WORKS.

[29 Ind. App. 207, 64 N. E. 229.]

NEGOTIABLE INSTRUMENTS—Extending Time of Payment.-A note which by its terms permits the holder to extend its time of payment, although payable at a bank within the state, is Dot commercial and negotiable paper, but is subject to all defenses that the maker or indorser may have against the holder. (p. 274.) NEGOTIABLE INSTRUMENTS-Indorsement as Warranty.— An indorsement of a non-negotiable note is a warranty of the maker's ability to pay, if due diligence is used by the holder. (p. 274.)

NEGOTIABLE INSTRUMENTS-Diligence in Collecting to Fix Liability of Indorser.-The fact that a non-negotiable note, not governed by the law-merchant, waives all defenses of the extension of time of payment given the drawer or indorser, does not relieve the holder from diligence to collect from the maker in order to hold the indorser when the note falls due after an extension of the time of payment. (p. 274.)

NEGOTIABLE INSTRUMENTS-Delay in Collecting-Release of Indorser.-If the holder of a series of non-negotiable notes delays for several years in attempting to collect from the maker after the last note falls due, such delay, unexcused and unexplained will release the indorser. (p. 275.)

NEGOTIABLE INSTRUMENTS-Extension of Time of Payment.-An indefinite extension of the time of payment or more than one extension, is not justified by a clause in a non-negotiable note waiving all defenses of the extension of time of payment given the drawers or indorsers. (p. 275.)

C. Kellison, for the appellant.

G. M. Ballard, E. B. Goodykoonts, B. H. Campbell and S. Parker, for the appellee.

207 HENLEY, J. The action was commenced by appellant against the makers of three several promissory notes and against appellee as indorser of the notes sued on. Appellee's demurrer to the complaint was sustained, and, appellant refusing to plead further, judgment was rendered in favor of appellee. The question presented by the action of the trial court in sustaining the demurrer to the complaint is the only question here for consideration.

The complaint alleges that on the twentieth day of August, 1890, Joseph W. Frank, William B., and Mary Corl executed 208 and delivered to the Anderson Foundry and Machine Works three several notes, the first of said notes being for the principal sum of two hundred and forty-one dollars and forty cents,

and payable on July 1, 1991; the second being for the principal sum of two hundred and forty-six dollars, and payable on January 1, 1892; and the third for the principal sum of two hundred and forty-eight dollars, and payable on July 1, 1892each of said notes providing for seven per cent interest from date and ten per cent attorney fees, waiving valuation and ap praisement laws, and each providing for eight per cent interest after maturity, and each and all negotiable and payable at the Exchange Bank of Bourbon, and each of said notes waiving presentment for payment, protest, and notice of protest, and nonpayment by the drawers and indorsers thereof severally; and each of said notes waiving all defenses on the ground of any extension of the time of their payment that may be given by the holder or holders to the drawers, or the indorsers, or either of them. The notes were in identically the same words, and different only as to the amounts and the time of payment. It is also averred in the complaint that afterward, and before the maturity of either of said notes, the appellee, the Anderson Foundry and Machine Works, for a valuable consideration, indorsed each of said notes by written indorsement thereon, in blank, and sold, transferred, and delivered each and every one of said notes to this appellant; the written indorsement of said Anderson Foundry and Machine Works on each of said notes being as follows: "A. F. & M. Works, per Vanneman." That on December 12, 1896, there was paid on the first of said notes the sum of ninety dollars and forty-nine cents, and that the interest on each and every one of said notes has been paid to July 1, 1896, and that, with the exception of the payments above stated, the principal and interest of said notes, and each of them is now due and remains wholly unpaid, and that there is now due appellant of principal, interest, and attorney's fees thereon the sum of twelve hundred dollars, all of which remains wholly unpaid.

209 That one of the makers of said note, the said Mary Corl, is now deceased. Appellant demands judgment against each of the makers of the notes and against appellee in the sum of twelve hundred dollars. The trial court properly sustained the demurrer to the complaint. Each of the notes sued on contained the following stipulation, viz.: "The drawers and indorsers severally waive presentment for payment, protest, and notice of protest, and nonpayment of this note, and all defenses on the ground of any extension of the time of its payment that

Am. St. Rep., Vol. 94-18

may be given by the holder or holders to them or either of them."

In the case of Glidden v. Henry, 104 Ind. 278, 54 Am. Rep. 316, 1 N. E. 369, the supreme court of this state first held that a note which, by its terms, permitted the holder to extend its time of payment, although payable in a bank of this state, was not commercial paper and negotiable as an inland bill of exchange, but was subject to all defenses that the maker or indorser might have against the holder. To the same effect, see, also, Oyler v. McMurray, 7 Ind. App. 645, 34 N. E. 1004; Merchants' etc. Bank v. Fraze, 9 Ind. App. 161, 53 Am. St. Rep. 341, 36 N. E. 378; Clark v. Trueblood, 16 Ind. App. 98, 44 N. E. 679; Mitchell v. St. Mary, 148 Ind. 111, 47 N. E. 224; Woodbury v. Roberts, 59 Iowa, 348, 44 Am. Rep. 685, 13 N. W. 312; Smith v. Van Blarcom, 45 Mich. 371, 8 N. W. 90.

The notes in suit not being governed by the law-merchant, appellee, by its indorsement and assignment thereof, warranted "the liability and ability of the maker to pay it, and is bound, if due diligence be used by the holder, to make good his warranty of the maker's ability to pay": Clark v. Trueblood, 18 Ind. App. 93, 44 N. E. 679; Huston v. First Nat. Bank, 85 Ind. 21; Pool v. Anderson, 116 Ind. 88, 18 N. E. 445.

In order to hold appellee liable, it was the duty of the appellant to use the same diligence that a prudent man would use in collecting his own debt. Our courts have uniformly held that the proper diligence in cases of this 210 character is that suit must be brought against the makers of the note at the next succeeding term after the note falls due, in order to fix the liability of the indorser: Odam v. Beard, 1 Blackf. 191; Macy v. Hollingsworth, 7 Black f. 349; Spears v. Clark, 3 Ind. 296; Craft v. Dodd, 15 Ind. 380; Miller v. Deaver, 30 Ind. 371. This rule was, to some extent, changed after the enactment of our present statute which authorizes the commencement of suits during term time, and in the case of Thompson v. Campbell, 121 Ind. 398, 23 N. E. 267, it was held that due diligence, under the facts therein stated, would require that the action be commenced and the note reduced to judgment at the earliest possible time.

Appellant had full control of the notes. Appellee, by the indorsement, lost all control over them. He could not protect himself in any way by any action he might take. It is largely for this reason that the law makes it the duty of the holder of

the note, if he wishes to make the indorser liable to him upon the indorsement, to use that diligence which a vigilant creditor would ordinarily employ to protect himself from loss where the debt is the bare obligation of the maker: Hoffman v. Bechtel, 52 Pa. St. 190; Thompson v. Campbell, 121 Ind. 398, 23 N. E. 267.

The complaint shows that suit was not commenced on either of the notes in controversy until several years after the last one of the series became due. The complaint falls far short of showing diligence upon the part of appellant, or excuse for the want of it. But appellant insists that the stipulation in the note which gave him the right to extend the time of payment, without releasing the appellee, takes him without the general rule of diligence as announced by the courts. The rule remains the same. If the privilege of extending the time of payment is exercised by the holder, the note thereby does not become due until the time of the extension has expired. The duty of the holder after the note is due remains the same. If appellant ever extended the time of payment of the notes so that they did not become due 211 until the term of court at which this action was commenced, his complaint does not divulge the fact. An indefinite extension of the time of payment, or more than one extension, and that for a definite time, is not justified by the language employed: Brandt on Guaranty and Suretyship, sec. 346.

We find no error. Judgment affirmed.

To Constitute a Negotiable Instrument, the time of payment must be stated with certainty. A note is none the less negotiable, however, because made payable on or before a named date: Leader v. Plante, 95 Me. 339, 50 Atl. 54, 85 Am. St. Rep. 415, and cases cited in the cross-reference note thereto; Joergenson v. Joergenson, 28 Wash. 477, 92 Am. St. Rep. 888, 68 Pac. 913. But a note providing that the payee or his assigns may extend the time of payment indefinitely is not negotiable: Glidden v. Henry, 104 Ind. 278, 54 Am. Rep. 316, 1 N. E. 369; Woodbury v. Roberts, 59 Iowa, 348, 44 Am. Rep. 685, 13 N. W. 312. See, also, Citizens' Nat. Bank v. Piolette, 126 Pa. St. 194, 12 Am. St. Rep. 860, 17 Atl. 603.

The Transferee of a Non-negotiable instrument takes it subject to equities and defenses: Merchants' etc. Bank v. Fraze, 9 Ind. App. 161, 53 Am. St. Rep. 341, 36 N. E. 378; Goff v. Miller, 41 W. Va. 683, 56 Am. St. Rep. 889, 24 S. E. 643. But the assignor warrants, by impli cation, that it is a valid subsisting debt, and that the maker of the instrument is solvent, or will be when it becomes due: Merchants' Nat. Bank v. Spates, 41 W. Va. 27, 56 Am. St. Rep. 828, 23 S. E. 681.

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