McIlvaine v. Bradley

1 Disney (Ohio) 194

• Court: Ohio Superior Court, Cincinnati
• Decided: May 15, 1856
• Status: Published

Opinion

Stores, J.

I hold, in this ease, that the indorser might dispense with the presentment and notice, required to charge him, by agreement made before the maturity of the contract: That no consideration need be shown for the agreement, as the act of the indorser was an estoppel, and he ought not to be permitted to deny it, or invalidate its terms. Story on Prom. Notes, §§271,272, 273, and cases there cited.

• What shall be regarded as intending to waive demand and notice, must depend upon the ordinary rule of construction, which is applied to the acts and language of all parties, whether they are embodied in writing, or proved by parol and submitted to the court, to be legally interpreted. To determine that meaning, in a case like this, we must understand the oly'ect the parties -had in view, the matter before them, and the general understanding of merchants, -of the terms used, or the language employed to express them, 6 Wheaton, 574-576, The Union Bank. v. Hyde; 8 Greenleaf, 213, Fuller v. McDonald; 4 Pickering, 525, Boyd v. Cleveland; 11 Wendell, 634, Backus v. Shipherd.

Whenever, as in the present case, the words “protest waived” are found over the name of the indorser, we must hold that they were intended to be a waiver of all the steps required by law to fíx his liability. It is universally known that a protest is never made until a formal demand of payment, by the notary; and it is but the just inference, from the act of the indorser, that he intended to dispense with all legal formalities precedent to his liability.

By the' statute now in force, the protest of the notary, in actions upon promissory notes, as well as bills of exchange, is prima fade evidence of all the facts stated by the officer which, by law, he is required to perform, in order to charge the indorser; and, it must necessarily follow, when the act of the notary is waived, it is equivalent to what his act, if legally performed, would be when offered in evidence. This is the construction of the Supreme Court of Pennsylvania, under a similar statute to ours. 10 Barr, 103, Scott v. Greer.

But the direct question is decided in 3 Denio, 17, Coddington v. Davis; and affirmed in error in the same case. 1 Comstock, 186.

This construction follows out the practice in the Erench courts, where it is held, if the words “ retour sansprotSt,” or “sclnsfrais,” are written upon the bill, they dispense with the usual formalities of demand and notice. Story on Prom. Notes, §273; Byles on Bills, 204; Chitty on Bills, 165, 9th edition.

Some judges have limited the effect of the waiver, confining it merely to the notice, and insisting that the presentment should be proved, as in 5 Shepley, 16, Drinkwater v. Tebbetts; 1 Louis. An. 312, Wall v. Bry; 22 Vermont, 561, Buchanan v. Marshall. This construction is on the ground, that the agreement to waive must be construed strictly, and can not be extended beyond the obvious meaning of its terms, but it seems to me the argument proves too much, for at last the question is, what did the parties intend ? I find ho difficulty in holding that the words used imply a waiver of all the steps required to hold the indorser, and judgment is rendered against him.

Judgment for plaintiff.