Drinkwater v. Tebbetts

The opinion of the Court was prepared by

Weston C. J.

An indorsement in blank fixes upon the indorser a conditional liability, the legal obligation of which is well settled and ascertained. But the conditions implied may be waived or modified, of which parol proof is legally admissible. Boyd & al. v. Cleaveland, 4 Pick. 525; Taunton Bank & al. v. Richardson & al., 5 Pick. 437, and Fuller v. M'Donald, 8 Greenl. 213, are authorities in point.

There is in the ease before us, an express waiver of notice in writing. This did not dispense with the necessity of a demand by the holder upon the maker, to charge the indorser. Upon the face of the indorsement, that condition remained in full force. If a waiver of both the conditions may be proved by parol, we are aware of no good reason why that kind of proof should be excluded, to show a waiver of one condition, where a waiver of the other is made a part of the indorsement itself. It produces no greater change in the legal obligation of the contract.

Upon examining the deposition of Elnathan Witham, which is made a part of the case, it is fairly deducible from it, that the defendant waived the condition of a legal demand upon the maker. It was matter of agreement, that the maker should be notified in a particular manner, which is proved to have been done.

Exceptions overruled.