SUPPORT OF LAND-MASTER AND SER- MISSOURI SUPREME COURT, MAY 9, 1892. LARSON V. METROPOLITAN ST. RY. Co. A company which contracts for an excavation for the foun dation of a building, to be made as the company's engineer should direct, any one refusing to obey his orders to be discharged by the contractor, is liable for injury to adjoining property, resulting from the negligent manner in which the excavation is made. A person who is told by an adjoining land-owner, that a proposed excavation for a building would be made in the usual manner by removing the dirt in sections and walling up one section before another was opened, is entitled to rely upon such representations, at least until a reasonable opportunity has been given him to take measures for the protection of his building. Gage, Ladd & Small, for appellant. Pratt, Ferry & Hagerman, for respondent. wide and from seven to eleven feet deep was first dug, near defendant's east boundary line, from the street to a point about opposite the south end of plaintiff's building, some seventy-two or seventy-three feet. The foundation of the latter was at a depth of eleven feet from the natural surface. They then began at the street line and carried the trench to a further depth of about two feet (a total depth of about thirteen feet for a distance of twenty-five or thirty feet from the street. The concrete and footing stone of defendant's foundation wall were then laid in the space or section. Three days later, according to the testimony of the foreman of the excavators, Mr. Butts directed him to "take out the remainder of the ditch," and he proceeded to do so, excavating to the additional depth of twenty-four to twenty-six inches (to correspond with the level of the first section) along the entire building line opposite plaintiff's house, a stretch of forty odd feet from the end of the first section. Mr. Butts was present while this work was being done. The job was begun at half-past 2 o'clock and was finished about half-past 5 o'clock of the same afternoon. That night, BARCLAY, J. Plaintiff's case is for damages occa- about 10 o'clock, a large part of plaintiff's building sioned by the fall of a building, occupied by him as slipped into the excavation, on account, as it is claimed, lessee of the Ackerson estate in Kansas City, Mo. The of that removal of its lateral support, but that portion gist of his petition is that "the defendant wrongfully, of the house which faced the masonry work of the first carelessly and negligently dug out and carried away section of defendant's foundation (for a distance of the soil immediately adjoining and under the west twenty-six feet from the street front) remained in wall of said building, by means of which * * * the place. The soil of the locality is that of the Missouri said west wall was made to fall * * *thereby river bottom, a mixture of sand and loam formed by destroying and damaging the property of plaintiff alluvial deposits. There was abundant evidence of extherein contained * * to the extent of $3,000."perienced builders and civil engineers that the customThe answer is a general denial. The Circuit Court ary way of removing such soil for foundations adjaforced plaintiff to a nonsuit by giving an instruction cent to and below that of other buildings is to take out in the nature of a demurrer to the evidence. It is the earth in sections of ten to sixteen feet each in therefore proper to outline the facts upon which plain- length, and to substitute the new foundation in each tiff relies as constituting his cause of action. In so do- section before opening the next one; that any other ing he is entitled to the benefit of the most favorable mode of doing such work is likely to result as in the view of his case that the evidence warrants, and of present case, but that building in sections involves an every reasonable inference therefrom. So viewed the expense from eighteen to thirty per cent greater than substance of his case is this: The plaintiff's building the cost of proceeding with subdividing the work in was a two-story brick, in which he carried on business. that manner. On these facts the trial court declared It stood two inches from the eastern boundary of de- that plaintiff had no cause of action, and he has apfendant's property, and extended from the street line pealed against that ruling. some seventy-two feet southward. The excavation to which the damage is ascribed was made upon defendant's lot, close along that boundary line. This line ran at a right angle to Ninth street, on which plain tiff's house fronted. Both the lots reached southward from the street one hundred and twenty-five feet to an alley. The defendant proposed erecting an enginehouse on its lot, and in prosecuting that purpose contracted in writing with a firm for the necessary excavating and masonry for the foundations. Some of the terms of that contract will be mentioned later. The contractors sublet the excavating to another, who began its performance, having a foreman there in charge of a number of workmen and teams. The defendant's chief engineer occasionally visited the work, but the actual superintendence, under the first contract mentioned, was mainly exercised by Mr. Butts, the engineer's assistant, who remained on the ground. The foreman of the digging party testified that the subcontractor placed him under the orders of Mr. Butts, and that the work was accordingly done as the latter directed. About the time the excavating began plaintiff had an interview with Mr. Butts, in which he asked "if he thought it was not dangerous to be taking dirt away" (namely, from "alongside of the wall"), to which Mr. Butts replied that "there was not going to be any injury to the building. Of course he was going to take it out in sections, and wall it up as they went along." Plaintiff says that that "kind of satisfied" him. The house fell about a week later. Plaintiff observed the work meanwhile. A trench some five feet 1. Before reaching the main issue it will be well to dispose of a subordinate one, touching the responsible connection between defendant and the digging force, to whose acts the consequences complained of are as. cribed. The defendant claims that those acts were done in effect by a contractor independent of its control, and that it is not liable on account thereof. It is now an accepted rule that supervision of such work may be retained without interfering with the independent action of liability of contractors who have engaged to perform it or subdivision of it, but in the case at bar the contract under which the work was done goes much further. It declares that "the excavation shall be carried to such general depth as may be indicated by the engineer. Excavations for the trenches and piers will be made as required from time to time in the progress of the work, and to such an extent as may be indicated by the engineer." Along with this language are statements that the engineer was "in charge of the work," and that men who refused or neglected to obey his orders were to be discharged by the contractors. Now the very act complained of here is the digging of the trench too long and too deep in the circumstances. That act is charged as negligence. It was ordered by defendant's representative on the spot, acting for the chief engineer, who had express power to direct "by his authorized agents" as well as personally. The work was done precisely as ordered. Thus it was the exercise of the discretion or judgment vested in the supervising authority which caused the catastrophe, and for that exercise of judgment defend ant must respond. Lancaster v. Insurance Co. (1887), 92 Mo. 460; Bower v. Peate (1876), 1 Q. B. Div. 321. 2. The chief question in the case is to determine what duty toward plaintiff rested upon defendant in view of the facts. Very much has been written upon the right of lateral support and its limitations under the English law. It will not be necessary to restate the general principles governing that right. They were discussed very lucidly here years ago in Charless v. Rankin (1856), 22 Mo. 573, which remains a leading case on that subject. For present purposes it will suffice to say it is settled law that the unquestionable right of a land-owner to remove the earth from his own premises, adjacent to another's building, is subject to the qualification that he shall use ordinary care to cause no unnecessary damage to his neighbor's property in so doing. We need not inquire how such a principle became ingrafted upou a system which traces its origin to the English common law, but that it is there is evidenced by abundant decisions, of which a few leaders besides that above cited may be mentioned. Foley v. Wyeth (1861), 2 Allen, 131; Austin v. Railroad Co. (1862), 25 N. Y. 334; Quincy v. Jones (1875), 76 Ill. 240. The underlying principle of legal ethics on which this rule rests is well stated in Charless v. Rankin, above, to be that "if a man, in the exercise of his own rights of property, do damage to his neighbor, he is liable if it might have been avoided by the use of reasonable care." The reports furnish many illustrations of its application, but we need not stop to emphasize the statement of it by references to them, since its force, in cases of this character, is now fully recognized. What is the standard of ordinary care which one excavating on his own estate must use to avoid damage to his neighbor's building is a question of some difficulty. In many localities the subject is regulated by statutes defining the reciprocal rights of the parties. It may be stated generally, in the absence of a statutory rule, that the care required of a party so excavating is that of a man of ordinary prudence in the circumstances of the particular situation, but that statement affords meager aid in determining the exact duty imposed by the rule in its practical application to any given case. The fact is that the particular circumstances so largely shape and indicate the duty that any attempt to reduce the rule to greater certainty would probably tend to impede, rather than to promote, the administration of justice. Quite recently it has been definitely held, following supposed indications in earlier cases, that prior notice to the neighbor whose property may be endangered by an excavation is au essential part of the ordinary care referred to (Schultz v. Byers [1891, N. J. Err. & App.], 22 Atl. Rep. 514), but that ruling was accompanied by a vigorous dissent, and can scarcely be considered as settling the point. It is not necessary to decide it in the case at bar, for it is here conceded that plaintiff had ample notice in fact of the intended excavation. He also had notice that it was to be made in a particular manner, namely, by removing the dirt in sections," and walling "it up as they went along." The defendant's superintendent in charge so stated to him at the outset, when plaintiff suggested the danger of the undertaking, and the former, as a witness in the cause, did not deny the plaintiff's account of that interview. It was in evidence that that course was the one indicated by ordinary prudence, and by the uniform custom of builders in that locality, in view of the nature of the surrounding soil. But for that information as to the mode of excavation and construction to be pursued, the plaintiff might have taken effective steps to shore up and protect his building, steps which were unnecessary if the work was done in sections. We think that plaintiff had the right to rely upon the statement of the superintendent, made during the progress of the work and of his agency (and hence res gesta), as to the care which defendant intended to exercise toward the property of plaintiff, with reference to which that statement was made. He bad the right to assume that the course foretold would be followed, at least until he had notice to the contrary, and a reasonable opportunity thereafter to act upon such later notice. We have added this last observation to meet the suggestion of defendant that plaintiff was duly advised that the excavation was not being done in sections. But on this point it appears that one section was first built substantially as promised, and that the long and dangerous excavation later, to which the fall of the building is charged, occurred between half-past 2 and 5 o'clock of the afternoon preceding the injury. On these facts the court cannot justly declare, as a conclusion of law, that plaintiff, in the exercise of reasonable care, was chargeable with notice that the plan of construction previously indicated by the superintendent was not to be followed, and should have taken measures of his own for the protection of his domicile. Nor do we think plaintiff's case concluded by the consideration that the removal of the earth in sections would have involved some additional outlay, and would have lessened in some slight degree the strength of its foundation wall. As to the latter fact, it is not claimed that the utility or value of the wall for the purpose of its construction would be in any wise impaired by the building in sections. As to the former fact of extra expense we regard it immaterial, in view of the other evidence already alluded to, not to mention broader considerations bearing on that point. Beauchamp v. Mining Co. (1883), 50 Mich. 163. If defendant notified plaintiff that a certain mode of proceeding was to be pursued, and thus led him to act upon that hypothesis and refrain from taking steps which would otherwise have been necessary and prudent to insure the safety of his property, the risk of injury to the plaintiff in the premises imposed on defendant the duty toward him of conforming to the plan of work of which it had advised him, or to reasonably notify him of a change in that plan in season to admit of his adopting protective measures of his own. The evidence tends to prove that no such evidence was given, and in default thereof the measure of reasonable and proper care on defendant's part, in the circumstances, was that indicated in the statement of the superintendent. As to whether the same measure of care would rest upon defendant in the absence of the peculiar facts here presented we are not called upon to say. In the view we take of the case the fact that the promised course of construction involved a greater expense than some other one can have no material bearing on the rights of the parties. On the whole case we think it fairly a question of fact whether defendant exercised ordinary care in directing the excavation to be made as it did, in view of the circumstances mentioned, and whether the fall of the building was caused or contributed to by any want of such care. The trial court, we consider, erred in iustructing to the contrary. The judgment should be reversed and the cause remanded. It is so ordered. BLACK, BRACE, MACFARLANE and THOMAS, JJ., concur. SHERWOOD, C. J., and GANTT, J., dissent. SHERWOOD, C. J. (dissenting). Action for damages growing out of the defendant company digging ditches or trenches for the foundations of an engine-house, then in process of erection, upon its own lot, 13, and along the western line of the building aud lot which plaintiff occupied as lessee of the Ackerson estate, in consequence of which digging the west wall of the house-a two-story brick building-in which plaintiff lived, and which he used as a saloon, restaurant and land he does not thereby acquire a right to have it derive its support from the land adjoining it until it shall have stood and had the advantage of such support for twenty years, In the mean time such adjacent owner may excavate his own land, for such purposes as he sees fit, provided he does not dig carelessly or recklessly, and if in so doing the adjacent earth gives way, and the house falls by reason of the additional weight thereby placed upon the natural soil, the owner of the house is without remedy. It was his own folly to place it there. But if it shall have stood for twenty years with the knowledge of the adjacent proprietor, it acquires the easement of a support in the adjacent soil. *But this right of a laud-owner to support his laud against that of the adjacent owner does not, as before stated, extend to the support of any additional weight or structure that he may place thereon. If therefore a man erect a house upon his own land, so near the boundary line thereof as to be injured by the adjacent owner excavating his land in a proper manner, and so as not to have caused the soil of the adjacent parcel to fall if it had not been loaded with an additional weight, it would be damnum absque injuria, a loss for which the person so excavating the land would not be responsible in damages." 2 Washb. Real Prop. (5th ed.), pp. 380-382, and cases cited. In 2 Shear. & R. * * boarding-house, fell, and in its fall carried with it other portions of the building, thereby damaging and destroying the personal property of plaintiff therein, and rendering the building untenantable. The petition charges that "the defendant wrongfully, carelessly and negligently dug and carried away the soil immediately adjoining and under the west wall of said building, by means of which," etc. The building in question was built within one inch of the division line of the two lots, and had so stood for several years. The ditches for the east line of the engine-house were dug quite close to the boundary line between the plaintiff's property and that of the defendant. The soil in the locality-the Missouri river bottom-is a mixture of sand and loam. In doing the work a trench of sufficient depth and width for the proposed foundation was wholly dug upon respondent's lot near the east line thereof. The trench was first dug out by Collins and his men for a distance of twenty-five feet. The original contractors filled up this space with stone masonry work. Three days thereafter the sub-contractor started to dig the remainder of the trench on the east side of the lot, and the night of the day this work was finished the Ackerson building fell, and plaintiff's property therein was injured thereby. The evidence shows that the soil of lot 14, in its natural condition, without the additional weight of the Ackerson build-Neg. (4th ed.), § 701, it is stated: "In exercising his ing, would not have fallen. And the testimony also shows that, so far as the mere fact of excavating was concerned, it was done in the proper way, but had the work been done in sections the injury would not have occurred. By doing the work in sections is meant that the excavators would dig sixteen feet or less in length of the trench, and then, before proceeding further, wait till the stone masons had walled up that portion of the excavation, and so continue till the work was completed. To have done the work in sections would have increased the cost from twenty to thirty per cent, and would have weakened the foundation. This increased expense would fall upon the contractor. The testimony also shows that the trenches for the foundation were dug to the depth of some thirteen feet, and five feet in width, and the first section of the trench, some twenty-five feet, running backward from Ninth street and along the boundary line, was at once filled in with concrete and footing stones to a point just below the lower level of the adjoining foundation, but the Ackerson building when it fell did not fall beyond the south end of these footing stones of the new foundation wall. rights over his land, the owner is bound to use ordinary care and skill for the purpose of avoiding injury to his neighbor. Thus while as a general rule he is not bound to continue the support which his land gives to a structure upon, or other artificial arrangement of, adjoining land, and is therefore not liable for the natural consequences of his withdrawing this support, yet in doing so he must act with such care and caution that (as nearly as by reasonable exertion it is possible to secure such a result) his neighbor shall suffer no more injury than would have accrued if the structure had been put where it is without ever having had the support of his land. One who digs away land which affords support to an adjoining house ought to give the owner reasonable notice of his intention to do so, and he must allow the latter all reasonable facilities for obtaining artificial support, including a temporary privilege of shoring up the house by supports based upon the former owner's land," and in the next preceding section the rule is laid down that "it is not therefore necessarily negligence on the part of a landowner to make a use of his land which inevitably produces loss to his neighbor, for as he may willfully At the close of the testimony the court instructed adopt such a course and yet not be a wrong-doer, much the jury that upon the pleadings and evidence the less is he liable for unintentionally doing that which plaintiff could not recover, and this action of the court he has a right to do intentionally." In another apresulted in the plaintiff taking a nonsuit with leave, proved writer ou negligence it is stated: "But whatetc. The correctness of the instruction thus given to ever may be the right of one land-owner to excavate the jury is the only question necessary for considera- his own soil so as to deprive his neighbor's land of its tion, and this involves the salient question in this support, the authorities are agreed that he must exercause, whether the plaintiff was guilty of actionable cise what care and skill he can to prevent injury to his negligence in the circumstances stated. On the point neighbor, and if he inflict an unnecessary injury upon in hand an eminent text-writer observes: "Of a na- his neighbor through negligence, he must pay the damture somewhat akin to the easement of light connected ages. Thus the authorities are agreed that one who with the ownership of a house is that of support, or proposes to excavate, or make other alterations or imthe right of having one's land and the structures provements upon his own land, which may endanger erected thereon supported by the land of a neighboring the land or house of his neighbor, is bound to give the proprietor. The proposition may be stated thus: A., latter reasonable notice of what he proposes to do, to owning a piece of land without any buildings upon it, enable him to take the necessary measures for the has a natural right of lateral support for his land from preservation of his own property. But after giving the adjoining land. This right exists independent of such notice he is bound only to reasonable and ordigrant or prescription, and is also an absolute right, so nary care in the prosecution of the work. Where the that, if his neighbor excavates the adjoining land, and excavation was of itself lawful, and the gravamen of in consequence A.'s land falls, he may have an action, the plaintiff's complaint was that it was unskillfully although A.'s excavation was not carelessly or unskill-done, it was held incumbent on the plaintiff to show fully performed. This natural right does not extend to any buildings A. may place upon his land, and therefore if A. builds his house upon the verge of his own In the negligence by other proof than by the mere fact that The Court of Appeals of Kentucky say: "The proprietor making the excavation cannot be charged with damages for negligence because he failed to shore up his neighbor's house in a case where the latter has no right of support in the nature of an easement by grant or prescription. In such case his neighbor must shore up his own house." Shrives v. Stokes, 8 B. Mour. 453. And there is no obligation on the part of the owner of a building about to be removed to shore up the other buildings. Goddard Easem. (Bennet's ed.), pp. 43, 44. In Shafer v. Wilson, 44 Md. 268, the same doctrine is distinctly recognized, that proper notice being given to the owner of a building on an adjacent lot, it is the duty of the latter, on receiving such notice, to shore up his own building. In Lasala v. Holbrook, 4 Paige, 169, the same principle finds recognition. To the same effect see Peyton v. London, 9 Barn. & C. 725, and other English cases, and 2 Shear. & R. Neg., supra, § 701. And the duty of the owner of a building on an adjacent lot which may probably be imperilled by the digging for a foundation on his neighbor's lot, to protect his building, is stated to begin after he has been notified of the intended improvement, and given an opportunity to protect his own interests. But if he has personal knowledge of the progress of the intended improvement this is tantamount to notice. This is the doctrine also of this court in Charless v. Rankin, 22 Mo. 566. These cases have been cited and quotations made from them as preliminary to the present investigation. Let us proceed to apply the result of these authorities to the facts in the case at bar. That the plaintiff was aware of the excavation going on, living as he did in the house which fell, and watching the excavation, cannot be questioned, and such actual knowledge has been held to countervail and overthrow the effect of notice when given even under an act of Parliament, and before the time specified in the notice had expired. Peyton v. London, supra. In that case, having such actual knowledge that the adjoining building was being pulled down, it was ruled that it was the duty of the plaintiffs to shore up their building by supports within that building, and they having failed to do this a nousuit was directed, and this was so ruled notwithstanding that the adjoining house, whose removal caused the litigation, had been supported by struts, and that these struts were removed when the house was torn down, it not appearing that any peculiar right or servitude had been acquired by the plaintiff over the adjoining house or property. The authorities cited also teach the doctrine that ordinary care is the measure of a man's liability, when excavating upon his own lot, which adjoins that of his neighbor, on which a building stands. Such improving owner, assuming that notice of the intended excavation has been given, or that knowledge of it exists, is only responsible for actual or positive negligence in the manner of digging for the foundations of his proposed building. So long as he does not dig carelessly or recklessly he is free from liability, let the consequences be what they will. 2 Washb. Real Prop., supra. And as the plaintiff here was fully cognizant of what was going on, he was bound properly to shore up, support or protect his own building against any probable danger. It was his clear duty, under the authorities and upon the evidence, for him to do this. As it was the plaintiff's duty to pro | tect his own property from destruction, it is clear that a concurrent duty to protect the same property could not exist as against the defendant. The bare statement of such a premise announces its own conclusion. But as the measure of the defendant's care was only ordinary care, it did not belong to him, nor was it required of him, to use the same care that a prudent man would exercise in similar circumstances. Such a standard of care was held too high a one on the part of an excavating proprietor in Charless v. Rankin, supra. And that case is also authority for the assertion that the owner of the servient tenement owes no duty to the adjoining proprietor to guard the interests of his neighbor, as he would do as the prudent owner of both properties; that he was not bound, for illustration, to go to an increased expense in the progress of excavation, by building his foundation wall in sections, nor to weaken that wall by such a course, and that a failure thus to build and thus to endanger the wall was not negligence. Applying these principles to this case, it becomes wholly immaterial whether or not a representative of the defendant company gave assurances to the plaintiff that he would build the remainder of the wall in sections. Such promise or assurance, if it were not the duty of that company, was but a nude pact, made without either duty to create or consideration to support it, and therefore not obligatory on the defendant company, even granting that the party making such promise was in reality the representative of the company. Besides, even after the promise was made, the plaintiff was present and knew that the promise as to building in sections was not performed, but making no effort to protect his property. In any event this action is not brought because of any negligent failure of the defendant company to build the wall in sections or to notify the plaintiff. The very gravamen of the action is the mere negligent manner in which the trenches for the foundations were dug. On such a statement negligence in any other regard obviously would be excluded. Peyton v. London, supra; Waldheir v. Railroad, 71 Mo. 514; Reed v. Bott, 100 id. 62. The judgment should be affirmed. The foregoing opinion was filed by me in Division No. 1 of this court, and I still adhere to the conclusions of fact and of law therein announced. The authorities I have cited fully sustain the positions I have taken, and especially is this true of Peyton v. London, supra, on the question of pleading, in which the opinion was delivered by Lord Tenterden, C. J. I am content to err, if err I do, in such good company. GANTT, J., concurs in this dissent. MT. MANSFIELD HOTEL Co. v. BAILEY. Suit cannot be maintained against the indorser of a note, before its maturity, for overdue interest, unless proper demand therefor has first been made upon the maker. P. K. Gleed, for plaintiff. TYLER, J. It appears by the statement of facts that George Doolittle and Mrs. E. J. Doolittle promised to pay the defendant, William P. Bailey, or order, $5,000 as their five promissory notes should respectively become due, and the interest thereon annually. The notes are dated April 1, 1886, are for $1,000 each, and payable sixteen, seventeen, eighteen, nineteen and twenty years from their date. The plaintiff, as the indorsee of the notes, seeks to recover of the defendant, as indorser, the first three years' interest upon them, without demand of the makers, and notice to the defendant of the makers' default of payment. The defendant's counsel contends (1) that the indorser cannot in any event be compelled to pay the interest as it annually falls due; that his conditional liability does not become absolute until the notes respectively mature, and then only after demand and notice; (2) that if the interest is collectible of the indorser as it annually accrues, it is after the usual measures have been taken to make him chargeable. The general rule of law relative to the respective liabilities of the maker and indorser of a promissory note is well defined. The promise of the maker is absolute to pay the note upon presentment at its maturity. The promise of the indorser is conditional that if, when duly presented, it is not paid by the maker, he, the indorser, will upon due notice given him of the dishonor pay the same to the indorsee or other holder. It seems clear that the indorser is not liable for the annual payment of the interest without performance of the conditions by the holder. If he were thus liable his relation to the note would be like that of a surety or a joint maker, and his promise, instead of being conditional, would be absolute as to the payment of the interest. This is contrary to the general statement of the law that his liability is conditional. The relation of principal does not exist between him and the maker. They are not coprincipals. Their contracts are separate and they must be sued separately at common law. Rand. Com. Paper, § 739. The maker has received the money of the indorser, and in consideration thereof promises to repay it according to the terms of the note, and if he fails to pay his contract is broken and he is liable for the breach. The contract of the indorser is a new one made upon a new consideration moving from the indorsee to himself. His undertaking is in the nature of a guaranty that the maker will pay the principal and interest according to the terms of the note. His liability is fixed upon the maker's default upon demand, and notice to him of such default. contract cannot be construed as an absolute one to pay the interest without default of or demand upon the maker. The promise cannot be absolute as to the payment of interest when it is clearly conditional as to the payment of the principal. It is held that, though the annual interest upon a promissory note may be collected of the maker as it falls due, it is not separated from the principal, so that the recovery of it is barred by the statute of limitations, until the recovery of the principal is thus barred. Bank v. Doe, 19 Vt. 463. The holder of a note with interest payable annually loses no rights against the parties to it, whether makers or indorsers, by neglecting to demand interest, and he has the election to do so or wait and collect it with the principal, for it is regarded as an incident of the principal. Bank v. Kirby, 108 Mass. 497. But it is so far an independent debt that he may maintain an action against the makers for it as it annually accrues, or allow it to accumulate and remain as a part of the debt until the note matures. Catlin v. Lyman, 16 Vt. 44. In the latter course the makers would be chargeable with interest upon each year's interest from the time it was due until final payment. 1 Aiken, 410; Austin v. Imus, 23 Vt. 286. It was said by the court in Taliaferro's Ex'rs v. King's Adm'r, 9 Dana, 331: "The interest, by the terms of the covenant, is made payable at the end of each year, and is as much then demandable as if a specific sum equal to the amount of interest had been promised, and in default of payment as much entitles the plaintiff to demand interest upon the amount so due and unpaid. The fact that the amount This new so promised to be paid is described as interest accruing upon a larger sum, which is made payable at a future day, cannot the less entitle the plaintiff to demand in terest upon the amount, in default of payment, as a just remuneration in damages for the detention or non-payment." "It is true that at the maturity of the notes the defendant would be liable, as indorser, for both principal and interest, upon due demand and uotice, although these measures had not been taken to make him chargeable as the interest fell due each year. Notice of the maker's default of payment of interest need not be given annually to the indorser in order to charge him with liability for interest when the note matures. This is so stated by the court in Bank v. Kirby, supra. In Howe v. Bradley, 19 Me. 31, it is held that when a note is made payable at some future period, with interest annually till its maturity, and no demand is made for the annual interest as it becomes due, or if made no notice thereof is given to the indorser, if duly notified of the demand and non-payment when the note falls due, both principal and interest, the obligation imposed by the law upon the holder is only to demand payment and give the required notice when the bill or note becomes payable, It is not held in this country that interest is subject to protest and notice, according to the law merchant, in order to charge indorsers with it when the note matures. The usual consequence of omission to notify the indorser of the maker's default, namely, the release of the indorser, would not follow the omission to give him annual notice of such default. A note is not dishonored by a failure of the maker to pay interest. First Nat. Bank v. County Commissioners, 14 Minu. 77 (Gil. 59); 100 Am. Dec. 196, note. The defendant's counsel argues that it would be inconsistent to hold the indorser liable for interest, which is a mere increment of the principal, until his liability is established to pay the sum out of which the interest springs; that there may be defenses to the note at its maturity which will release the maker, and consequently the indorser, or that the indorser may then be released by neglect of demand and notice. On first impression it might seem inconsistent that the maker should be compelled to pay interest before his liability has been fixed to pay the principal, but that is his contract. It is also argued that the fact that the interest, when uncollected, is an incident of the debt, so that as it annually falls due demand and notice are not necessary in order to charge either the maker or the indorser with liability to pay it when the note matures, is ground for holding that the indorser is not liable for interest until he is made liable for the principal. The question is whether the indorser, by the act of indorsement, promises to pay any thing on the note till its maturity, at which time he clearly may be made liable for both principal and interest. The note bears upon its face an absolute promise by the maker to pay the principal when it becomes due, and the interest thereon annually. two-fold. It is as absolute to pay the interest at the end of each year as to pay the principal at the end of the time specified. Now what is the nature of the contract which the indorser makes with the indorsee? His contract is not in writing, like that of the maker, but his name upon the note is evidence that he has received value for it, and also of an undertaking on his part that it shall be paid according to its tenor. When he indorses it and delivers it to the indorsee he directs the payment to be made to the latter, and in effect represents that the maker has promised to pay certain sums of money according to the terms of the note; that is, the principal at maturity and the interest annually; that if the maker fails to pay on demand he, the indorser, will pay on due notice. His conditional promise is concurrent with the absolute promise of the His promise is |