Buckley v. Bentley , 42 Barb. 646 ( 1865 )

By the Court,

Balcom, J.

There is no ambiguity in the words “ Notice of protest waived by me,” which the defendant Bentley, wrote over his signature upon the back of the note. The sentence they form is not susceptible of more than one construction, and its meaning or effect could not be legally enlarged or altered by evidence of the surrounding circumstances, or of what occurred when it was written. It was therefore the duty of the judge to ascertain its meaning and effect from the words used. The understanding of Bentley and the plaintiffs at the time the same was written, not manifested by the words employed, was wholly immaterial. The question was, what agreement did Bentley make with the plaintiffs by writing over his name, upon the back of the note, the words, “Notice of protest waived by me;” and not what agreement did he intend to make at the time he wrote them. In other language, the question before the judge was, did Bentley by writing those words over his name, waive presentment of the note by the plaintiffs at its maturity, to the maker, Babcock, and demand of payment thereof of him ? I am of the opinion he did not. Nelson J. used the following language in Backus v. Shipherd, (11 Wend. 629 :) “ The first question raised in the case, I believe, has not been decided by this court; but, as a general proposition, we have no hesitation in saying that a stipulation by the indorser of a note to waive notice of demand upon the maker, does not, according to the law merchant, dispense with the demand itself. They are distinct acts, and each a condition precedent to the right of recovery by the holder. The indorser, in waiving notice, may rely upon an assurance or conviction that the note will be paid by the maker, if demanded when due.” (See also, Coddington v. Davis, 3 Denio, 22, 23 ; Story on Prom. Notes, 5th ed. § 272.) In the case of the Berkshire Bank v. Jones, (6 Mass. Rep. 524,) Parsons, Ch. J. said: “ The defendant has argued that although he waived notice of a refusal of payment by the maker, yet he did not thereby dispense with a demand upon him; for he might waive the notice from a confidence that the maker would pay the note on demand. This construction of the waiver we think correct.” I concur in these views; and according to them we must hold that Bentley only waived notice of presentment of the note to the maker and demand'of payment of him at its maturity, and that he did not thereby release the plaintiffs from actually presenting the note to the maker and demanding payment thereof of him at its maturity.

I am aware that the supreme court of California held in Matthey v. Gally and others, (4 California Rep. 62,) that “ an express waiver of notice of, non-payment is equivalent to an admission that the note has been presented, or need not be presented.” But I think the decision-in that caséis unsound, and that we ought not to follow it in opposition to the reasoning of Justices Nelson and Parsons, (supra,) which gives the words of the .waiver their most natural and obvious meaning.

I do not doubt that the plaintiffs believed Bentley waived presentment of the note to the maker and demand of payment of him, as well as notice thereof, by the words he wrote over his signature; and it is possible that Bentley and the plaintiffs understood at the time the waiver was written that it had that effect, and intended it should so operate. But it can not be so construed without giving it a meaning which the obvious import of its language does not warrant. And, of course, it was an error so to construe it at the circuit.

[Broome General Term, January 21, 1865.

The plaintiff’s counsel has argued that the payment of $25, on the note after it became due, by the application of an account thereon that Bentley had against the plaintiffs, of which the former had notice and to which he never objected, was a waiver by him of presentment of the note to the maker and demand of payment thereof of him at its maturity, and renders Bentley liable for the whole note. But the judge has not found that Bentley knew the note had not been presented to the maker, or payment thereof demanded of him when he assented to the indorsement of the $25, as a payment by him upon the note. If Bentley knew these facts when he assented to that indorsement as a payment by him, there is authority for holding him liable for the payment of the entire note. (See Levy v. Peters, 9 Serg. & Rawle, 125 ; 1 Fla. R. 25, 34; 13 La. R. 419 ; Shearer v. The Easton Bank, 33 Penn. R. 134; 23 Miss. R. 538; 2 Wash. C. C. 514; 20 Ill. R. 557; 1 Parsons on Notes and Bills, 608; 23 Wend. 379; 5 Hill, 232.) But the judge has not found that Bentley had such knowledge, and we ought not to express any opinion upon the question. (But see Whiting v. Burt, 3 N. Y. Legal Obs. 33.) My conclusion is that the judge erred in holding that Bentley waived the presentment of the note to the maker and demand of payment thereof of him, by waiving notice of protest ; and that for this reason the judgment in the action should be reversed and a new trial granted, costs to abide the event.

Decision accordingly.

Parker, Mason and Palcom, Justices.]