Farmers & Mechanics Bank v. Day

13 Vt. 36

• Court: Supreme Court of Vermont
• Decided: January 15, 1841
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

But two questions appear to arise in this case.

1st. Whether the bill of exchange was indorsed to C. F. Warner, as cashier of the bank, orto him in his individual capacity, and this is distinct from the question whether the bank, on such indorsement, could maintain an action in their own name ? This does not appear to have been questioned.

2d. Whether the plaintiffs are entitled to recover, on this declaration, without proving a demand and notice ?

Both questions were correctly decided by the county court.

If there was any uncertainty, on the face of the bill, whether the word cashier was appended to the name, or rather, whether the figures and marks were intended for that word, testimony was proper and necessary to establish that fact. In the fac similes we have of the signatures of some distinguished men, it would be impossible to make out the name, except by the testimony of those acquainted with such signatures. This must, from the nature of the case, be a subject to' be established by parol testimony.

The second question was virtually decided in the case of Seeley v. Bisbee, 2 Vt. R. 105. A person, for whose benefit notice is to be given, may waive the notice. A promise to pay a bill, before it is payable, is equivalent to proof of demand and notice. It was decided, in the case of Norton v. Lewis, 2 Conn. 478, that, “ when a party relies on a waiver of demand and notice, he may allege the demand and notice in the same manner he would have done if actually given, and proof of the waiver is equivalent to the proof of demand and notice. The cases of Lundie v. Robertson, 7 East 231, and Gibbon v. Coggan, 2 Camp. 188, are to the same effect, and we adopt the principle decided in those cases.

But further, there is a count in this declaration stating the waiver, in order to avoid any question of variance which might be presented.

It appears that the defendant expressly waived all demand and notice as to any bills drawn by Guy Catlin, injsuch terms as, unquestionably, comprised the draft in suit. The judgment of the county court is affirmed.