Whitney v. Abbot

5 N.H. 378

• Court: Superior Court of New Hampshire
• Decided: April 15, 1831
• Status: Published

Opinion

By the court.

In this case, after it was ascertained by the parties that the makers of the note had failed, and before the note had become due, the defendant told the plaintiff, that the latter should have no trouble about it, that he, the defendant, would pay it, and that he was going to procure the money to pay it. This we think must be considered as a direct and absolute promise to pay, at all events, when the note became due, and the question is, whether this promise was a waiver of the right of the defendant to call for proof of a regular demand and notice ?

It is well settled, that after the holder of a note has neglected to make a demand and to give notice, the consequences of this neglect may be waived by those who are entitled to insist upon it ; and that a promise to pay, made with a full knowledge of the facts, is a waiver of the advantage which the law gives upon such neglect. 3 N. H. Rep. 347; 6. J. B. Moore, 319, Patterson v. Beecher; 2 N. H. Rep. 340,

And we do not perceive any sound reason, why a party may not, before any neglect to make demand, or to give notice, has taken place, waive his right to call for proof of a demand and notice as well as afterwards ; nor why an absolute promise to pay, made before there has been any neglect, should not be deemed such a waiver.

And it seems to be settled, that an absolute promise to pay is such a waiver, as well when made before the note becomes due as when made afterwards. 1 Johns. Cases, 99, Leffingwell v. White; 6 Pick. 80, Barker v. Parker; 4 Pick. 525, Boyd v. Cleveland; 2 Starkie’e Ev. 275, Bailey on Bills, 187—193.

Judgment on the verdict.