The whole question in this case is, what the indorsers meant by their agreement which they wrote on the note ? Did they intend thereby to make themselves liable to the same extent as if all the steps necessary to fix them as indorsers had been taken, or did they intend that the holder of the note should yet do something on his part to make them liable ?
It is contended for the defendants, that the agreement was a waiver only of a formal protest, and that demand and notice were still necessary to fix the indorsers. This argument is based on the principle that the agreement is to be strictly construed, and that it was a waiver of protest only. If the writing had been, “we waive protest,” etc., the argument might have applied. But that is not the writing. It is, “ we being indorsers, bind ourselves for the payment of the note, the same as if regularly protested.” The rule of law applicable to the case, is that which says that agreements shall be construed according to the intent of the parties, and there can be no doubt that it was the intention of both parties to waive all that was necessary to fix the indorsers.
A formal protest was unnecessary to fix the indorsers; it was enough that demand should be made and notice given. Yet, it is contended that the agreement intended only to waive that which was unnecessary, and to insist upon that which alone was necessary. This would render the writing entirely nugatory. But contracts must be so construed rather to give them effect than to destroy them, and the only construction which can give this writing effect, is that which regards it as a waiver of both demand and notice. It is thus alone that, by “regular protest,” the indorsers would be bound for the payment of the note, and that, I apprehend, is what they intended to be.
Motion for new trial denied.