
    Fuller vs. McDonald, adm’r.
    
    If the payee of a negotiable note indorses his name in blank on the back, he there» by assumes only the legal liability of an indorser, depending on written evidence, which cannot be varied by parol.
    But parol evidence is admissible to show that the right to demand and notiee was waived by the indorser.
    It is not necessary that such waiver be positive. It may result by implication, from usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver was intended.
    This was an action of assumpsit by the indorsee against the administrator of the late Gen, John MlDonald as indorser of a promissory note, of the following tenor: — •“Umerick, April 8, 1820. For value received I promise to pay John McDonald or his order three hundred and twenty-one dollars and forty-six cents on demand with interest. Davenport Tucker.” At tile bottom of the note was the following memorandum; — “ The indorser guarantees the eventual payment of the above note.” — On the back were these indorsements; — “ 20 April 1820,pr. receipt — Received one hundred dollars, and a receipt given for the same. $100. — 15 September, 1826. Received on this eleven dollars 94-100 being an error and interest on note given up. $11,94. — And underneath— “ John M’Donald.” — The declaration contained a second count for money had and received.
    At the trial, which was before the Chief Justice, the plaintiff offered the depositions of James Means, with the note annexed, and of Robert M. Barnard; and the depositions of Earl Sturtivant, with a memorandum annexed, and of Eleazer Howard, Jr.; to the admission of each of which the defendants objected, but the objections were overruled.
    
      Means testified that in the latter part of the year 1827, Tucker being in Boston, he presented the note to him and requested payment ; to which Tucker replied that he was then unable to pay it, but thought he should be in the spring. Means then requested 
      Sturtivant to take notice of what was said, and make a memoran», dum of it, which he did.
    
      Barnard testified that in October 1825, he received the note of MDonald in payment of a debt which the latter owed him ; McDonald at the same time saying that Tucker would pay the note-the next time he came to Boston, which was expected to be the next spring; and if he did not, that he, McDonald, would pay it the next time he came to the city; — that he told MDonald that he would not take the note unless he would agree to those terms, to which he assented j — of which the witness directed his clerk, Mr. Howard, to make a memorandum ; — that the next time he saw Tucker he requested payment of the note, and Tucker replied that he had the money of Gen. MDonald under particular circumstances, that he could not pay it then, and should n.ot. until he could make it convenient. Tucker further stated that there was an error of $ 11,94 in the note. In September 1826, after the death of the indorser, the witness stated these facts to his administrator, who corrected the error by paying the amount in money, which was indorsed on the note, at the same time giving the memorandum annexed to Sturtivant’s deposition. In the spring of 1827j Barnard failed, and the note was transferred, with other effects, to his as-, signees, of whom the plaintiff was one. In a second deposition Barnard testified that he had no interest in this suit; and annexed a copy of the assignment to his creditors, from which it appeared that they accepted the property assigned, in full of their respective demands, and discharged him from all further claims.
    
      Sturtivant testified that the nóte was in the hands of the assignees on the twenty-eighth day of December 1827, at which time payment was demanded of Tucker, who promised to pay the note in two or three months; of which, at their request, the witness made a memorandum, on the back of an original paper signed by the present defendant, and annexed to his deposition, in these words: “ Boston, Sept. 15, 1826. Memorandum, that I, as administrator of the goods and estate which were of John MDonald, late of Limerick, in the county of York, and State of Maine, deceased, agree to guarantee the eventual payment of a note which my father sold to R. M. Barnard, against Davenport Tucker, dated IAmerick, ■April 8, 1 820, which was the agreement of my father. John McDonald, administrator.”
    
      Howard testified that he was present at the indorsement of the note to Barnard, and recollected the facts as the latter had stated them in his deposition; — that he made the memorandum on the bottom of the note at Barnard’s request; — and that he was also present in Sept. 1826, at the conversation testified to by Barnard, between him and the administrator, .who thereupon, in his presence, made the memorandum annexed to Sturtivant’s deposition. ■
    It was admitted that Gen. M’Donald died March 16, 1826 ; and that in the summer of 1829 the plaintiff’s attorney called on the defendant for payment of the note, who requested him to sue Tucker, which lie did, and obtained judgment, but the execution was returned unsatisfied.
    Whereupon a nonsuit was entered, for the purpose of referring to the court the question of the defendant’s liability, he agreeing to be defaulted, if adjudged liable to pay the note.
    
      Appleton and M. Emery, for the plaintiff,
    cited the following authorities to show that the action was rightly brought in the name oí Fuller : Bingham, v. Miarean, 7 Tick. 40; Cole v. Cushing, 8 Pick. 48 ; Bayley on Mils, 67; Frye v. Baker, 4 Pick. 382 ; 2 Stark. Ev. 247 ; Blakely v. Grant, 6 Mass. 386 ; Upham v. Prince, 12 Mass. 14; Smith v. Clark, 1 Esp. 180; Lovell v. Evertson, 11 Johns. 52 ; Williams v. Matthews, 3 Cowen, 252 ; Thompson v. Robinson, 4 Johns. 27; Bank of Utica v. Smith, 18 Johns. 230; Dean v. Hewitt. 4 Wend. 257 ; Cobb v. Little, 2 Greenl. 261; 3 Greenl. 84; — and that it was apparent that notice was waived by the indorser; or,, if not, yet upon the whole evidence the plaintiff was entitled to recover on either count: Taunton v. Richardson, 5 Pick. 436 ; 2 Stark. Ev. 273, 275, note ; Burrill v. Smith, 7 Pick. 291; Hill v. Buckminster, 5 Pick. 391; Baxter v. Penniman, 8 Mass. 134 ; Brown v. Anderson, 13 Mass. 203 ; Emerson v. Thompson, 16 Mass. 439; Atkins v. Sawyer, 1 Pick. 192.; 1 Phil. Ev. 74; Pierson v. Hooker, 3 Johns. 68 ; Durgee v. Den~ 
      nison, 5 Johns. 248; Jlgan v. McManniis, 11 Johns. 180 ; Halt v. Freeman, 2 JVott &/■ McCord, 479 ; Gibbon v. Cogan, 2 Campb. 183; 6 East. 16; 7 East. 231; Gunson v. Mott, 8 Serg. Lowb. 478 ; Boyd v. Cleaveland, 4 Pick. 625 ; Barker v. Parker, 6 Pick. 80 ; Whitwell v. Johnson, 17 Mass. 449 ; Hopkins v¡ Liswell, 12 Mass. 52 ; Peacock v. Rhodes-, 2 Doug. 363 ; Grant v. Vaughan, 3 Burr. 1516 ; Ellis v. Wheeler, 3 Pick. 18 ; 2 Phil. Ev. 13, 14, 21; Dunlop v. Shearer, 1 Crunch, 418 ; Bayley on bills, 244 — 6 ; State bank v. Hurd, 12 Mass. 172 ; Chitty on bills, 170. That the want of privity was no valid objection against the plaintiff’s recovering on the money count: Wilde v¡ Bishop, 4 Pick. 421; Hill v. Ely, 5 Serg. Rawle, 363 ; Davenport v. Mason, 15 Mass. 85; Barker v. Prentiss, 6 Masss 430 ; Little v. Blunt, 9 Pick. 488. And to the competency of the evidence objected to : 1 Phil. Ev. 226 ; Ely'v. Forward, 7 Mass. 25 ; Phillips v. Bridge, 11 Mass. 242 ; Bean. v. Bean, 12 Mass. 20 ; Locke v. JY. Jlmer. Ins. Co. 13 Mass. 61 ; Cotchil v. Discon-, 4 McCord, 811; 5 Wend. 55; 2 Stark. Ev. 746 ; Henry v. Morgan, 2 Bin. 497.
    
      J. &f E. Shepley, for the defendants,
    argued that the evidence furnished nothing to take the case out of the ordinary rules applicable to indorsed notes; and that therefore the defendant was not liable, for want of seasonable demand and notice. Groton v. Dalheim, 6 Greenl. 476. If it is any thing else, it is a contract of guaranty ; which was a promise to Bdrnard alone, and not assignable, so as to entitle this plaintiff to sue in his own name. Scott v. Me Lellan, 2 Greenl. 203 ; Chitty on bills, 448. Whatever it was, the proof is in writing, by the indorsement of the party’s name on the back of the note. Over this, the holder may write whatever the law implies by the act of transfer, but nothing more. To admit parol evidence to set up any other contract, as made at the same time; Would he to charge the party in the double capacity of indorser and guarantor; and would violate the rule which does not admit parol evidence to contradict or add to a written contract. Barry v. Morse, 3 JY. Hamp. 132 ; Bayley on bills, 336; Hopkins v. Liswell, 12 Mass. 54; Field v. Nickerson, 13 Mass. 138; Renner v. 
      
      Bank of Columbia, 9 Wheat. 5S7 ; Free v. Hawkins, 8 Taunt. 92 ; Britton v. Webb, 2 Barnw. f Cresw. 483 ; Motes v. Bird, 11 .Mm. 440. But if the parol evidence is admitted, it establishes a contract altogether collateral, upon which here is no proper count to entitle the plaintiff to recover. Dow v. Tuttle, 4 Mass. 414. And being a conditional undertaking, the defendant is absolved by the laches of Barnard. Oxford hank v. Haines, 8 Pick. 426 ; Cobb v. Little, 2 Greenl. 261; lÁncoln Of Kennebec bank v. Page, 9 Mass. 157; Berkshire bank v. Jones, 6 Mass. 524; Thornton v. Winn, 12 Wheat. 183; Garland v. Salem bank, 9 Mass. 408 ; Trimble v. Thorn, 16 Johns. 152; Griffin v. Goff, 12 Johns. 423 ; Miller v. Hackley, 5 Johns. 375 ; Tower v. Durell, 9 Mass. 332 ; Warder v. Tucker, 7 M.ass. 448.
    
   The opinion of the Court was read at the next September term in Alfred, as drawn up by

Weston J.

The deposition of James Means, and the first deposition of Robert M. Barnard ; also a memorandum signed by tho defendant, and another by Earl Sturtevant, used at the trial, were objected to by the counsel for the defendant. The first deposition of Barnard, taken by itself might be liable to objection, as it justified tho inference that he was interested in the suit, and ultimately to bo benefited by it, if tho plaintiff prevailed. But laying his deposition out of the case, the same facts are testified to by Eleazer Howard. Besides, in Barnard’s second deposition, given after all interest on his part had ceased, he reaffirms the facts stated in the first j thus removing every objection to his testimony.

It has been urged, that the liability of the intestate and of the defendant, if liable at all, is upon a contract of guarantee. And that if the plaintiff from the evidence, if competent, could maintain an action upon such a contract, he has no count charging the defendant upon this ground. An indorser, is conditionally liable ; so is a guarantee ; but the latter may be holden, where the former would not be. The liability of a guarantee, and the steps necessary to charge him, have been well set forth and illustrated in the case of the Oxford bank v. Haynes, 8 Pick. 423. He is generally either the payer of a note not negotiable, or some person not named in the body of the note or other instrument, of which he becomes the guarantee. We are not aware of any case in which the payee of & negotiable note has Been charged as a guarantee', who indorses his name upon the note. If however he distinctly and expressly engages as such, there does not appear to be any objection to his being so charged. But it is a contract of a specific character, governed by its own principles. And there is certainly great weight in the position, that upon such an engagement, he cannot be held as- indorser, relying upon this contract as evidence of a Waiver of demand and notice. It would be confounding principles well settled, which it is important to preserve. But if, as was the present case, the payee of a negotiable note indorses it in blank, he thereby assumes a legal liability as indorser, depending on written evidence. It would affect his liability, and materially vary his undertaking, if it could by parol evidence be converted into a contract of guarantee. If the depositions and memoranda objected to at the trial, were' introduced and relied upon for this purpose, changing as they would the legal effect of a written contract, they are not warranted by the law of evidence, and are clearly inadmissible. And we are well satisfied that if the intestate was not liable as indorser, neither he, nor the defendant representing him, can be charged in this action. If he was, either count in the plaintiff’s declaration is sufficient. Upon this point we entertain not the least doubt. The note was negotiable. The intestate was the payee ; and he indorsed it in blank. Nothing was written over his name, at the time or since ; nor does it appéar that he requested or authorized the making of any memorandum on the note. That was made by Howard, under the direction of Barnard, as their sense of what the intestate had agreed.It constituted no part of his contract. By his name on the back in blank, he assumed the liability of an indorser of a negotiable note, made payable to himself. The memorandum is not in itself evidence but may be used by the witnesses to refresh their memory. Unless demand and notice was waived by the indorser, there is no sufficient evidence of either to charge him. The case therefore turns upon the question, whether it does appear by competent proof, that demand and notice was waived. This may be proved by parol. It does not change the character of the contract, or convert it into one of a different species. It only relinquishes a condition, to which the party would otherwise have been entitled. It does not appear that Howard in his memorandum on the note, used the language of the intestate. What lip did agree, is stated by Howard and by Barnard in their depositions. They state from recollection, agree in their testimony, and neither appears to be at a loss os to what, passed at the, time of the indorsement. The intestate was indebted to Barnard. The note, payable on demand, bad been then given over five years. It bad been some time prior in the hands of Barnard. Tlio intestate urged him to receive it in payment, and pass it to his credit. Barnard' was reluctant. It had been long due; and it is evident from the testimony that he relied only upon the credit of the intestate. But upon the urgent solicitation of the latter, and upon his express assurance and engagement, that if the maker did not pay the note tlio next time he came to Boston, he, the intestate, would tlio next time he came ; Barnard received the note, and passed it to his credit. We are of opinion that the inference reasonably and justly to bo drawn from this testimony is, that the legal steps of demand and notice, otherwise necessary to charge an indorser, wore waived by the intestate. To hold his estate discharged from this liability would, upon these facts, unjustly throw a loss upon Barnard, or his assignee, without any fault or negligence on their part. Barnard did, in relation to the note, every tiling the parlies could have contemplated. Howard thinks ho wrote to the maker at the time of the indorsement. At any rate he is sure that he saw the note when he came to Boston, and that payment was demanded of him by Barnard. He did not pay. Then the intestate was to pay when he came to Boston ; and wo think the fair implication is, that, he waived notice of the failure of the maker to pay, until he could be apprized of it on his arrival in Boston. Boyd v. Cleaveland, 4 Pick. 525, is a strong authority for the plaintiff; and it is a case decidedly in point. It is not distinguishable from the case before us. It did not convert a contract of guarantee into evidence of a waiver of demand and notice. Cleaveland was an indorser; not a guarantee. He could not be made such by parol; but from what passed between him and Boyd, when the latter received the note, he was deemed, and we think properly, to have waived his right to demand and notice. It is not necessary that such waiver should be direct and positive. It may result by implication from usage, or from any understanding between the parties, which is of a character to satisfy the mind that a waiver was intended.

The nonsuit is taken off, and a default is to be entered.

Defendant defaulted,  