Hall v. Crane

100 N.E. 554, 213 Mass. 326, 1913 Mass. LEXIS 974

Opinion

Hammond, J.

At the time of the indorsement the defendant made a written waiver of demand; and the only question is whether as matter of law that was a waiver of notice. Plainly it was not.

The liability of an indorser is conditional, the conditions being-first, that at the maturity of the note there shall be a demand upon the maker for payment, and second, that if the note be not then paid due notice thereof shall be given to the indorser. And these two conditions are distinct and independent of each other. Either can be waived and the other insisted upon. Neither upon principle nor by the great weight of authority is a waiver of one without more a waiver of the other as matter of law. Berkshire Bank v. Jones, 6 Mass. 524. R. L. c. 73, § 106. Drinkwater v. Tebbetts, 17 Maine, 16. Burnham v. Webster, 17 Maine, 50. Danl. Neg. Instr. (5th ed.) § 1098. See also Low v. Howard, 11 Cush. 268, and Parks v. Smith, 155 Mass. 26, and cases cited.

Judgment for the defendant.