Cady v. Bradshaw

• Decision Date: 08 October 1889
• Citation: 116 N.Y. 188,22 N.E. 371
• Parties: CADY v. BRADSHAW et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 188

22 N.E. 371

CADY

v.BRADSHAW et al.¹

Court of Appeals of New York, Second Division.

Oct. 8, 1889.

Appeal from supreme court, general term, fifth department.

John H. Camp, for appellant.

E. W. Hamm, for appellee.

PARKER, J.

The defendant Hiram Bradshaw indorsed a promissory note made by E. D. Bradshaw to the order of Reuben Rowland, and indorsed by him. The note was for $1,000, payable one year after its date, which was July 11, 1882. It was not paid when due, and thereafter this plaintiff, who became the owner and holder thereof before maturity, commenced this action. The defendants, E. D. Bradshaw and Reuben Rowland, suffered default. This defendant in and by his answer, and upon the trial, contended that he was not liable as indorser upon the note for the reason that, when the note became due, it was not presented to the maker for payment, and notice of its dishonor given. Upon the trial plaintiff insisted that demand and notice of maturity had been waived by the defendant prior to the date whereon the note became due; and the plaintiff testified to a conversation which he claimed to have had with the defendant which it was insisted constituted, in legal effect, a waiver of his right to have a demand for payment made, and notice of non-payment thereof given to him. The defendant denied having the conversation testified to by the plaintiff. In submitting the question to the jury the court charged that if they believe the plaintiff's version of what took place between him and the defendant there was a waiver, otherwise not. The jury found in favor of the plaintiff, and the judgment entered thereupon was affirmed by the general term. In the disposition of the case then, by this court, the facts most favorable to the plaintiff must be deemed to have been found in his favor. The liability of an indorser of a note pay it is made to depend upon the implied of the maker at maturity, and, in the event of the maker at maturity, and, in the event of default, that notice of non-payment shall be immediately given to the indorser. These conditions are for the benefit of the indorser, to enable him to have prompt notice of the default, so that he may immediately take steps to provide for his indemnity. The indorser may, however, prior to maturity, waive the conditions of demand and notice of non-payment. The waiver may be made either verbally or in writing. It is not necessary that the waiver should be direct and positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended. 1 Pars. Notes & B. 594. The assent must, however, be clearly established, and will not be inferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14.

The facts which are relied upon to constitute a waiver, on the part of the indorser, of demand and notice of non-payment, and which must be assumed by this court to have been found in favor of the plaintiff, are as follows: Prior to the date at which the note matured this defendant called upon the plaintiff, and asked him if he would extend the note another year if the interest should be paid up. He said he wanted it extended another year, and Ed. (meaning the maker) would pay up the interest. Plaintiff responded that he was willing, if the defendant would let his name be on it, and let it be as it was. Plaintiff further asked the defendant if he and Mr. Rowland would let their names remain on the note, and the defendant said yes, if plaintiff would let the note stand just as it was. Before the maturity of the note, plaintiff saw Rowland, who consented to the extension. The question presented, therefore, is whether the facts proven constituted a waiver of the indorser's right to a demand of payment and notice of non-payment thereof. Now it is true that the indorser did not say in so many words, ‘I waive demand and notice of non-payment;’ but, when he asked that the time of payment be extended a year, he in effect requested that no demand of payment be made at maturity. That request,...