ciple, a drawer, although drawing upon funds, is not entitled to require notice from an indorser who indorsed for his accommodation, to enable him to get his bill discounted, or add strength to its credit; for although as against other parties entitled to require strict diligence in respect to presentment and notice, as to such indorser the debt is his own." 62 But it does not seem that an agreement by an indorser of a note, made at the time of indorsement, to pay the note at maturity would bind him absolutely without presentment or notice; it would be understood to have been made. with the implied reservation that if the maker paid he was not liable, and he would be discharged by failure to demand payment of him. If the maker and the payee, who is also indorser, jointly borrows the money, a promise of the payee to pay it, dispenses with the necessity of presentment and notice.64

63

66

§1086. What relations between the parties excuse want of notice. Where one of several partners draws upon a firm of which he is a member, it has been held that he is not entitled to notice, both in the case of an accepted 65 and of an unaccepted bill. The not to pay the bill." And then, after stating the principle set forth in this section, that where the money is received by the indorser he is not entitled to notice, he added: "But the same reasons do not appear to exist where the note has been discounted for the maker. In that case the funds which represent the note are in the hands of the maker, or, to use the language applicable to bills, in the hands of the acceptor before the draft becomes payable, the drawer had a right to draw, and had a right to expect that his bill would be paid. Upon principles of reason and of justice, then, it would seem that notice of nonpayment could as little be dispensed with in this case, as if he had himself paid the money to the maker of the note, and then received it from the bank, or as if the note had been given him for a previous debt, and had been discounted for his own use."

62. Er parte Heath, 2 Ves. & B. 240; Story on Bills, § 310.

63. Davis v. Gowen, 19 Me. 447.

64. Bank of Seaford v. Conneway, 4 Houst. 206.

65. Rhett v. Poe, 2 How. 457; Story on Bills, § 392; 1 Parsons on Notes and Bills, 524. In Porthouse v. Parker, 1 Campb. 82 (1807), the bill was drawn by the agent of George, James, and John Parker, who were partners, upon John Parker, and accepted by the latter's agent. Lord Ellenborough held, that the bill having been accepted by order of one of the defendants, this was sufficient evidence of its having been regularly drawn; and, further, that the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove that the defendants had received express notice of the dishonor of the bill, as this must necessarily have been known to one of them, and the knowledge of one was the knowledge of all. See also New York, etc., Co. v. Meyer, 51 Ala. 325.

66. Fuller v. Hooper, 3 Gray, 334. In New York, etc., Co. v. Selma Sav.

drawer will, however (where a bill is drawn on a firm of which he is a member), be entitled to notice if the copartnership had dissolved before the bill was drawn.67 The question of notice of the dissolution of the firm, it is said, might be important.68 In like manner, where the drawer and drawee are partners in the particular transaction in which the bill was drawn, no notice, it has been held, is necessary, for the reason assigned that knowledge of one partner is the knowledge of the other, and notice to one partner is notice to the other. But it has been held that notice must be given to the indorser, when one member of a firm makes a note and another indorses it, both parties signing in their own. name, although the note was given for partnership purposes, and was to be paid out of the partnership funds.70 Where one firm draws on another, and they have a common member," or a firın draws on a member, 72 the drawer firm is not entitled to notice.

1087. What relations between parties excuse want of demand.— Where the makers of a note constitute one firm, and it is indorsed by another firm, in each of which firms the same person is one of the partners, the indorsing firm is entitled to require strict presentment to the firm making the note, for the two firms stand in their business relations as distinct persons, with separate accounts, funds, and liabilities, although having a common member.73 And, as has been said, to hold otherwise would subject the firm indorsing to payment of the note, because one of the partners belonged to both firms, when the firm primarily liable is solvent, and would pay at once if the note were presented.74 The same rule applies

Bank, 51 Ala. 305, a bill was drawn by one firm on another, and was accepted by the latter. The two firms had a common member. Held, notice not necessary to charge the drawers. Taylor v. Young, 3 Watts, 339; Gowan v. Jackson, 20 Johns. 176; Story on Bills, § 392.

67. Taylor v. Young, 3 Watts, 339.

68. 1 Parsons on Notes and Bills, 525.

69. Harwood v. Jarvis, 5 Sneed, 375; Story on Bills (Bennett's ed.), 313a; Rhett v. Poe, 2 How. 457; Hays v. Citizens' Sav. Bank, 101 Ky. 201, 40 S. W. 573.

70. Foland v. Boyd, 23 Pa. St. 476, Lowrie, J.

71. New York, etc., Co. v. Selma Sav. Bank, 51 Ala. 305. See Porthouse v. Parker, 1 Campb. 82, supra.

72. New York, etc., Co. v. Meyer, 51 Ala. 325.

73. Dwight v. Scovil, 2 Conn. 654; Caunt v. Thompson, 7 M., G. & S. 400; Foland v. Boyd, 23 Pa. St. 476; 1 Parsons on Notes and Bills, 523; Story on Notes, § 294.

74. Swift, C. J., in Dwight v. Scovil, 2 Conn. 654.

when the drawer or indorser of a bill belongs to two firms. For though each partner is presumed to have knowledge of all the facts known to another, yet knowledge of nonpresentment is no equivalent to it, nor is it a waiver of the holder's obligation to make it. Where the two firms reside in different and distant places, the necessity and reason of the rule is peculiarly obvious."

76

§ 1088. It is intimated by Professor Parsons that notice to the drawing or indorsing firm would be likewise necessary." But this does not seem to be a necessary implication from the foregoing. A formal demand upon the firm primarily liable is necessary in order to ascertain whether or not it will pay the bill or note; and until such demand is made at its place of business or otherwise, according to law, the drawing or indorsing firm has not broken its contract that upon such demand the bill or note will be paid. But if it is not paid on demand, it might be urged that the firm drawing or indorsing must be chargeable with the default, as it should know of the dishonor through its common copartner, who was as much bound to see the bill or note paid as his associate in the other firm. This view has been taken, or at least very distinctly intimated, in a case where a question nearly identical was presented.78

§ 1088a. Where the drawer and the drawee of the bill are the same person it is in effect a promissory note, and no notice of dishonor to the drawer is necessary, 79 and upon the doctrine that the maker of a note, like an ordinary debtor, must seek his creditor, the drawer of a bill upon himself has been held chargeable

75. Story on Bills, § 376.

76. Dwight v. Scovil, 2 Conn. 654.

77. 1 Parsons on Notes and Bills, 523.

78. West Branch Bank v. Fulmer, 3 Pa. St. 399. The note in this case was made by one firm and indorsed by another. All the indorsers were partners in the firm which made the note, which firm had two additional members. No notice was given to Cochran & Perry, the indorsing firm, but they were held liable, and Gibson, C. J., said: "It would be absurd in an indorser to complain that he had not been served with formal notice of what was known to him, or that he was prejudiced for want of it. As, then, it was as much the business of Cochran, Perry & Co. as it was the business of the other members of Beers, Cochran & Co. (the makers) to provide for the payment of their joint note at its maturity, and as they all knew that provision had not been made for it, proof of notice to Cochran & Perry would have been superfluous in an action against them as indorsers."

79. Vol. I, §§ 128, 129, and cases cited.

without presentment. doubtful.81

80

But as to presentment this doctrine is

§ 1089. Joint makers at distance from each other. When there are joint makers of a note, and they live so far apart that it is impossible to make demand of both on the same day, it would seem that a delay for the necessary time to present to both would excuse for such time the want of demand on both, and the want of notice.82

80. Bailey v. Southwestern Bank, 11 Fla. 266; Maux Ferry Co. v. Branegan, 40 Ind. 361; Fairchild v. Ogdensburg R. R., 15 N. Y. 337; 2 Ames on Bills and Notes, 462; Benjamin's Chalmers' Digest, 3.

81. See 2 Ames on Bills and Notes, 462; ante, § 1088.

82. 1 Parsons on Notes and Bills, 531. See chapter XX, on Presentment for Payment, § 595, vol. I.

CHAPTER XXXII.

SPECIAL CIRCUMSTANCES OF EXCUSE FOR WANT OF PRESENTMENT, PROTEST, AND NOTICE, ARISING FROM SPECIAL ACTS OF WAIVER.

§ 1090. When presentment of the bill or note at maturity has been dispensed with by prior agreement between the parties, or, in other words, has been waived by the party entitled to require it, the holder is excused for his failure to make it. It would be a fraud upon the holder to permit him to suffer by acting upon the assurance of the party to whom he looks as security upon the paper; and as prompt presentment is a requirement solely for the benefit of the drawer and indorsers, they are themselves the sole judges to determine whether or not they will enforce it. The waiver may be either verbally or in writing; it may be expressed in totidem verbis, or inferred from the words or acts of the party; and it matters not what particular language may be used, so that it conveys the idea that the presentment at maturity is dispensed with. The like observations apply to the protest and notice. Where the indorser of a check wrote over his name, “waiving demand and notice," it was held that he was not entitled to require any demand of the maker, or notice to himself of nonpayment, as conditions precedent to his liability.1 Such words have the effect to dispense with the necessity for those formalities. If a higher security for the debt be given by the drawer or the indorseras, for instance, a mortgage or deed of trust, and nothing is said therein respecting demand and notice, the

1. Emery v. Hobson, 62 Me. 578. See also Woodman v. Thurston, 8 Cush. 157, 16 Am. Rep. 514; State ex rel. Parks v. Hughes et al., 19 Ind. App. 266, 49 N. E. 393; Quaintance v. Goodrow, 16 Mont. 376, 41 Pac. 76, citing text; Maddox v. Duncan, 143 Mo. 613, 45 S. W. 688, 65 Am. St. Rep. 678, note.

VOL. II-9