
    Thomas B. Kyle v. Sylvester Green.
    An indorser of a promissory note may, by special agreement, waive notice of demand and non-payment.
    If the indorser contract with the indorsee that he will be responsible for the payment of tho note, if the maker prove unable to pay it, after being prosecuted, and his property exhausted, an action may be sustained against the indorser without proof of notice that the maker has failed to ’ pay.
    This is a motion for a new trial, reserved in the county of Miami.
    *Tho grounds urged for a new trial are, that the court erred in their charge to the jury, and that the verdict of tho jury was contrary to evidence.
    The action was brought upon a promissory note for $207, executed by one Daniel Ferran to the defendant, given September 1, 1837, and by him assigned to Kyle, with several other notes.
    Kyle executed to Green the following receipt and agreement, respecting said notes:
    “ I have received of S. Green the following notes, by assignment from him, and I agree to sue the respectivo makers of the notes, if collection can not be made otherwise, and use all due diligence to collect the notes from the makers before said S. Green shall become liable for any of them.”
    The declaration contains four counts.
    The ordinary count of indorser against indorsee. This count varied by the averment that the maker had been proseoutod tore-turn of execution “ no goods,” etc., and common counts.
    Verdict for the plaintiff. This is the second verdict in the Supremo Court (or plaintiff, a new trial having been once granted. There was also a verdict for plaintiff in the common pleas.
    The following is the memorandum of facts and charge of the court, furnished to sustain the motion for a new trial:
    On the trial of this cause, plaintiff having introduced the paper herewith marked A, subscribed by Kylo, and the promissory note herewith, and proved the recovery of judgment on said note against Ferran, the maker; the returnof“no goods” by the sheriff, and also a request by Green to Kyle to be lenient to Ferran, as hereinafter stated, rested his ease. And thereupon the defendant moved the court for a nonsuit, on the ground that the plaintiff had failed to prove the notice to Green, averred in his declaration; that he had prosecuted the maker of said note, obtained judgment on the same, and that “ no goods,” etc., had been returned by the sheriff.
    No testimony *of such notice having been adduced, the defendant insists the court erred in overruling his motion.
    It was also in evidence that after the instrument above referred to, as subscribed by Kyle and marked A, was subscribed, and the trade between Kyle and Green concluded, some conversation <3f the following purport was had: Green said to Kyle, “Now you need not jump upon the makers of the notes at once. There is Ferran ; ho is honest, and will pay. If you will call on him at times, along, you will be able to get it in small sums,” etc. Kyle replied to this, “ that he would do with the notes the same as if they were his own.” The above conversation took place immediately after the trade had been concluded, and before the parties had separated. Mr. Morris,' one of the witnesses, testified “that Kyle would not agree to indulge any of the makers of the notes, at Green’s above-named suggestions. That he, Morris, drew the instrument A; that the object of the parties in having the instrument drawn, was to save Green harmless from his liability to suit on demand and notice merely, and to compel Kyle to sue the makers before looking to Green.” Ferran was Green’s brother-in-law, and Green had sot him up. Two terms of court were suffered to elapse by Kyle before he brought suit against Ferran.
    In charging the jury, the court said, in regard to the above-named paper signed by Kyle, that it obviated any necessity of notice to Green of a demand upon the makers by Kyle; that Kyle was bound by it to sue the makers immediately, unless the jury were satisfied, from the evidence, that Green had given Kyle leave to defer prosecution by suit, and authorized him to exercise the same discretion which.ho might, had the paper been wholly his, without any connection whatever with Green. That if the evidence proved such a latitute to have been given by Green to Kyle, then Green would be liable if Kyle had exercised that discretion honestly and properly. That two terms of court had been suffered' to elapse between the receipt of the note by Kyle and the commencement of suit against Ferran, which would be fatal to the plaintiff unless the *jury found the delay was at the request of Green, and it was for the jury to say whether such were the fact.
    R. S. Hart, in support of the motion:
    The declaration, in this case, averred that the plaintiff had prosecuted the maker of the note, and obtained a return upon the execution of “no goods,” etc., of which the defendant had duo notice.
    It is claimed by the defendant that, under this declaration, it was incumbent on the plaintiff to prove notice to the defendant of these facts, no matter what may have been the agreement between them, at the time of the assignment of the note.
    It is further claimed by the defendant, that there was nothing in the pretended agreement, made at the time of the assignment of the note, which obviated the necessity of demand and notice.
    If either of these positions is correct, it follows that the court erred in its charge to the jury; that the verdict of the jury was wrong, and that a now trial should be granted.
    The court is referred to the following authorities; Chit. PI. 330 ; Ib. 321; Lewis v. Brewster, 2 McLean, 21; Parker v. Riddle, 11 Ohio, 102; 2 H. Black. 336; 1 Selw. N. P., 4 ed. 324; Brown v. Maffoy, 15 East. 216; Chit, on Bills, 472, 473, marg. paging ; Conn, v. Gano, 1 Ohio, 486.
    William J. Thomas, contra:
    We think the charge of the court correct in view of the facts of the case, and are satisfied with the finding of the jury. The opinion of^he one, and the actions of the others, are sustained by the following authorities, on which we rely, and to which we direct the attention of the court: 19 Johns. 69; 4*Cow. 173 6 Cow. 626; 1 Wend. 457 ; 14 Wend. 231; Chit, on Bills, 10 Amer. ed. 441, 442, n. 1, 2.
   Read, J.

As to the fact whether the jury found contrary to evidence:

The jury found in accordance with the evidence; and, if the charge of the court was correct, the facts warranted the verdict.

The charge of the court was correct. Green wraived demand and notice by the agreement. It will bear no other construction. Kyle was to sue the makers and use all due dilligence to collect the notes before Green became liable. Green was not to becomo liable on demand and notice of non-payment; but, after suit brought, and failure to collect, or due diligence. Why, then, notify Green ? That he might discharge the note and pursue the maker? It was expressly contracted that Kyle should sue the maker, and use due diligence; and, on failure to collect, Green would be liable. But it is said Kyle should have sued the makers immediately, and that he suffered two terms of the court to pass without suit. This is true, had not Green told Kyle to delay and “ not to jump on the makers at once;” Kyle, in reply, told him ho would “ use them as his own.” With this verdict, how can Green complain, when Kyle did the very thing designed? Such a defense is neither good in morals nor law.

But it is argued, although the attention of the court does not appear to have been directly called to that point, that Kyle should have given notice to Green of failure to collect on execution, to render him liable. To support this, reference is made to the law merchant and guaranty. The answer to this is, that the parties, made a law to themselves by their contraot, which governs this case. Green by its terms, was to be liable after suit and failure, or due diligence to collect. Green’s liability *to be sued commenced immediately on such failure, not on failure and notice, and the law will not add notice.

Motion for new trial overruled, and judgment on the verdict.  