On Motion for Rehearing.
Appellant pleaded its case, tried it below, assigned error, and briefed it on the theory that J. W. Head had, after the maturity of the note, waived the notice of presentment and nonpayment required by the Uniform Negotiable Instruments Act. In its motion for a new trial appellant now attacks the action of the trial court for the first time on an entirely different ground. It now contends that since Head was president of the corporation which made the note, was familiar with its affairs, knew that it was insolvent when the note matured, and was the proper person to whom presentment for payment should have been made at maturity, since the note was in the bank where payable on the day of maturity, which fact, in legal contemplation, amounted to presentment to the corporation for payment, the result is the same as if the note had been presented to him as such president in person on the day it matured, and brings the case within section 115 of the Negotiable Instruments Act, which dispenses with the requirement that notice of dishonor be given “where the indorser is the person to whom the instrument is presented for payment.” Appellant cites several authorities not heretofore called to our attention in support of its new contention.
We have read carefully all the authorities cited. In the cases of Bessehger v. Wenzel, 161 Mich. 61, 125 N. W. 750, 27 L. R. A. (N. S.) 516, In re Swift (D. C.) 106 F. 65, O’Bannon Co. v. Curran, 129 App. Div. 90, 113 N. Y. S. 359, and Mercer v. Hydrocarbon Converter Co., 205 App. Div. 78, 199 N. Y. S. 75, it was held in each instance that some conduct representations, or agreements of the indorser before the date of maturity of the note sued upon amounted to an implied waiver of notice of dishonor, or rendered such notice unnecessary. No such state of facts exists in the present case. It is not contended that J. W. Head did anything prior to maturity that could be construed as a waiver and appellant’s only contention on this issue was that his waiver of notice occurred after maturity of the note. Do the facts of the instant case then bring it within section 115 of our Negotiable Instruments Act (Vernon’s Sayles’ Civil Statutes 1922 Supp. art. 6001 — 115) so as to make notice of dishonor unnecessary. We think not. In Westinghouse Electric & Mfg. Co. v. Hodge, 181 Mo. App. 232, 167 S. W. 1186, Whitney v. Chadsey, 216 Mich. 604, 185 N. W. 826, Waterproof Paper & Board Co. v. Van Buren, 182 Wis. 640, 197 N. W. 338, and also in. In re Swift (D. C.) 106 F. 65, it was held that the president of a corporation who indorsed the corporation’s note was deemed to have been the person to whom presentment for payment was made. This rule appears to have been predicated upon the facts 'that in those cases he was the only proper person to whom presentment for payment could have been made, or the only person authorized to pay such note upon pres&ntation, or that he was in active charge of the corporation’s affairs and knew that the corporation had nothing with which to pay such note when it matured and could and would not pay same. In such a case notice to the indorser of what he already knew would be a vain and useless thing.
We do not disagree with the holdings in those cases, but the facts in the instant case do not bring it within the rule there announced. J. W. Head was not the only officer of the corporation, if he was in fact a proper- officer — which is doubtful — to whom said note could have been presented. Certainly he was not actively in charge of the corporation’s affairs. He did not even know that he had been elected on its board of directors and had never attended a board meeting. A. H. Kirby, its vice president, had been, up to a short time before the note was executed, in active charge of the corporation’s business. Dr. Head testified that the only thing he ever did as president was to sign the note sued upon. Mr. Kirby as vice president executed the mortgage at that time on the corporation’s property to secure the note. This mortgage was executed for the express purpose of protecting the indorsers, and Dr. Head testified that when the note matured the mortgaged property securing its payment was worth more than the amount of the note. A Mr. Barber was treasurer of the corporation. Mr. Kirby would have been as proper a party to whom presentment for payment could have been made as was Dr. Head. Then, too, the corporation had been placed in the hands of a receiver some eight days before the note matured. Its assets had doubtless all been turned over to him, including money on hand. Dr. Head could not have paid said note, under such circumstances, if it had been presented to him and the corporation had had sufficient funds on hand to pay this particular debt; but the bank would have been required to present its claim to the receiver, have same allowed, and paid under order of the court. Nor was Dr. Head’s indorsement the only security the bank had. According to his testimony, the bank had ample security on property belonging to the corporation, which property had doubtless been turned over to the receiver, from which the entire debt could have been paid at that time. Under such circumstances, we think it cannot be said that Dr. Head knew, at the time of maturity of the note, that the corporation could not and would not pay such note on presentation to the proper party, or that the bank must look to him as indorser for payment. The facts of *997this case, therefore, are not analogous to those in the cases cited, and it does not come within the rule there announced.
Appellant also complains of this court’s giving weight to the testimony of Dr. Head that he did not know whether any notice of nonpayment had been sent to him. Appellant’s fifth assignment of error, however, complains of the failure of the trial court to submit this very issue to the jury. Our conclusion was not based on this question, however, but on the failure of the evidence to show an absolute and unconditional promise of Dr. Head, made after maturity, to pay the note, which’ was essential to constitute waiver. It was agreed that no notice of dishonor was ever sent him, and it was immaterial whether he knew such fact or not.
Appellant’s motion is therefore overruled.
Overruled.