
    Joseph Field versus Ebenezer Nickerson.
    In order to charge the indorser of a negotiable promissory note payable on demand, a demand must be made within a reasonable time, and notice of nonpayment immediately given to the indorser.
    A demand and notice, eight months after the date and indorsement of sucn a note, all the parties living in the same town, were holden not to have been made and given within a reasonable time.
    [By the Supplement to the Rev. Stat. of Massachusetts, c. 121, $ 2, it is provided, that demand shall be made within sixty days of the date of a note on demand, in order to hold the indorser. — Ed.]
    Assumpsit upon two promissory notes, dated January 31st, 1814, one for $2264.56, the other for $ 1472.44, made by Messrs. Redjield fy Beers, payable on demand, with interest, to the defendant or his order', and by him indorsed in blank to the plaintiff. The declaration contained various counts ; 1st, against the defendant as indorser ; 2d, as on a joint and several note by Redjield 8f Beers and the defendant; 3d, as on a special contract by the defendant, that, if the plaintiff would lend the amount to Redfield &/• Beers, the defendant would pay him, if Redjield &/■ Beers should fail to do it.
    A trial was had upon the general issue, before the- Chiej Justice, November term, 1814 ; when it was in evidence, that, before the making of the notes in question, Redfield fy Beers were indebted to the plaintiff in the amount of these notes, for money lent, &c. The plaintiff calling on them for payment, they proposed a further delay, upon their giving the defendant’s indorsement, to which the plaintiff agreed. Redfield fy Beers then applied to the defendant for his indorsement of the notes declared on, informing him of the above circumstances, and that the money would not be immediately demanded. The defendant thereupon put his name in blank upon the notes, which were, handed by Redfield fy Beers to the plaintiff.
    The demand of payment was made on Redfield fy Beers on the 23d of September, 1814; and, payment being refused, due notice was on the same day given of such refusal to the defendant ; and payment was requested of him. All the * parties to the transaction lived in Boston, transacting their business upon the same wharf; and Redfield fy Beers were merchants doing business as usual until five days after the said demand of payment, when they stopped payment, the plaintiff having attached their goods in a suit upon these notes. It did not appear that the plaintiff had any ground to doubt their solvency, before the demand of payment as aforesaid.
    With a view to bring the case before the whole Court, the judge directed the jury, that the particular circumstances, under which these notes were made and indorsed, had no bearing upon the case ; that the indorsement of a note payable on demand with interest, like the indorsement of a note payable at a day certain, was a conditional contract on the part of the indorser ; that the condition, on which the indorser agreed to be responsible for such a note, was, that the holder should make a demand on the maker within a reasonable time, and should give notice of non-payment; that, if the demand was not made within a reasonable time, the indorser was discharged ; that in this case what was a reasonable time was matter of law, arising from the facts which appeared ; that, all the parties to the transaction living in a town where credit for loans of money among merchants is commonly given for thirty, sixty, or ninety days, the indorser must be considered as having contracted with reference to the usual period ; that a delay of eight months was unreasonable, unless accounted upon legal principles ; and this without reference to the apparent solvency or insolvency of the makers of the note ; and that they should find for the defendant.
    The indorsement, being originally in blank, had been filled up in the usual form, in a former action against the promissors ; and the plaintiff, at the trial of the present action, moved to add to it a guaranty of the payment of the notes in question, and to file new counts in conformity thereto ; which was refused, upon the ground, that the blank indorsement by the defendant in this case was but a conditional contract, which the particular views and * intentions of the parties, or the circumstances of the case under which the notes in question were made, could not convert into an absolute guaranty of payment; or, at least, that oral testimony of such circumstances could not be admitted, to change this contract, which in its written terms was an indorsement of a negotiable note, into a guaranty, or any other contract of a different nature.
    If, from these facts, the Court should be of opinion, that the defendant, by his indorsement, made a different contract from that which the jury were charged to consider it; or, that what, under the circumstances- of this case, was a reasonable time within which payment should have been demanded, was a matter to be left to the jury ; the verdict was to be set aside, and a new trial granted ; and, if what was a reasonable time in this case is matter of law, and the time given by the plaintiff was not unreasonable ; or if, by law, the time for making a demand was not until the holder should see fit to make it, the verdict was to be set aside, and a verdict entered for the plaintiff, for the amount due by the notes in question.
    The' cause was argued at the last March term, by Gorham and Thatcher, for the plaintiff, and Prescott, for the defendant.
    
      For the plaintiff,
    
    it was contended, that notes of this description being a common assurance for debts in this country, it was important to give them the effect usually contemplated by the parties, which was, that the indorser puts himself in the place of a surety, and is equally liable with the promissor ; at least, that he is liable, within the time limited by statute, until the holder of the note demands payment of the promissor or principal, after which due notice is to be given him ; and the parties the,n assume the same relation to each other as parties to a note payable at a day certain. This is the only satisfactory construction of the contract. If every case is to depend on its particular circumstances, suits will be excessively multiplied. 1
    A note payable on demand is payable at the will of the * holder ; and the undertaking of the indorser of such a note is, that he will pay the money, if the promissor does not pay it when demanded of him. If the holder is bound to make a demand upon the promissor within a reasonable time ; it is for the jury to say, under all circumstances, what is a reasonable time. For, if a certain time is fixed by law, then this species -of contract must cease, for it will thus be changed into a contract to pay at a day certain. 
    
    
      For the defendant,
    
    it was said, that the engagement of the indorser oi such a note could not be extended further than a promise, that, if within a reasonable time he should be notified of the promissor’s neglect or refusal to pay the money, he would himself pay it. What is a reasonable time is matter of law. 
    
    
      
      
        Boehm & al vs. Sterling & al ,7 D & E. 423. — Thurston vs. M'Kown 6 Mass Rep. 428. —Muilman & al. vs. D'Eguino, 2 H. Black. 565.
    
    
      
      
        Tindall vs Brown, 1 D & E. 167.—Furman vs Haskin, 2 Caines's Rep. 372.— Hendricks vs Judah, 1 Johns. 319. — Losee vs. Dunkin, 7 Johns. 71. — 4 Mass. Rep. 370. — Ayer vs. Hutchins, 7 Mass. Rep. 494.
    
   The opinion of the Court was delivered at this term, by

Parker, C. J.

The defendant in this action is charged as indorser of a promissory note, made payable to him or order, by Rcdfield, Beers, on demand, dated the 31st of January, 1814, and indorsed to the plaintiff on the same day. A demand upon the maker, and notice to the indorser upon non-payment, are averred in the declaration. By the facts reported it appears, that no demand was made upon the promissors, until the 23d of September following, which was nearly eight months after the date of the note. The jury were instructed, that, to charge the indorser of a promissory note payable on demand, proof of a demand within a reasonable time after the indorsement, and immediate notice to the indorser of nonpayment, are requisite ; and the jury were left to decide, whether, under the circumstances of this case, the demand was made within a reasonable time. They returned a verdict for the defendant, upon the ground that the delay in calling upon the makers of the note was unreasonable.

The charge to the jury is objected to by the counsel for the plaintiff; who contend, that a demand, at any time after making the note, with seasonable notice to the * indorser, provided the statute of limitations does not oppose the recovery, will be sufficient to hold the indorser ; or, at least, that, •under the special circumstances proved in this case, the defendant is liable, although upon common principles the delay of the demand might have discharged him.

It is remarkable, that the law, relating to so familiar a species of written contract as a promissory note of hand payable on demand, should at this late period be doubtful. But it is certain, that no decisions have taken place, in England or in this country, upon the points brought into question in the present action. It is also known, that opinions of respectable lawyers, and others among us, differ widely respecting the character and legal qualities of this contract; and that, in consequence, different practices have prevailed respecting them in different parts of the State. In the metropolis, the common opinion among merchants seems to have been, that a negotiable note of hand payable on demand, and indorsed, is a security for money, and, like a joint and several note, may lie in the hand-i of the indorsee for an indefinite time ; provided, when he shall demand payment, and is refused, he give seasonable notice of the refusal to the indorser. On the other hand, in some parts of the country, it has been understood, that the same strictness is applicable to contracts of this kind as to notes payable on a day certain ; so that, as they are by law due immediately after they are signed, they must be demanded on the same day they are given, if indorsed on that day ; or immediately after the indorsement, in other cases, if the holder can conveniently make such demand.

In this state of uncertainty, it is highly necessary that the rule of law should be made known ; for contracts of this kind are in daily use in all parts of the State, and the rights and duties of parties, who may hold or be liable upon them, ought to be precisely ascertained, if possible.

The nature of the contract must be inquired into for this purpose. Between the promissor and promissee there *is no difficulty. The note is evidence of a debt or promise, and will remain obligatory upon the party signing it, until lawfully discharged ; unless by the statute of limitations the other party is prevented from recovering. When it is indorsed, a new party is introduced, and new Qualities are attached to it. ■ It then not only resembles an inland bill of exchange, but becomes one in fact, as to the terms on which the indorser, who may be considered the drawer, may be rendered liable. The indorser, holding written evidence of a promise by another to pay him a sum of money, which by law is assignable, by ordering the contents to be paid to a third person, virtually requests his debtor to pay the debt, of which the paper is the evidence, to that person. He has thus drawn a bill on his debtor, and the debtor is the drawee or payer of the bill; and the bill must be considered as accepted when drawn. This analogy, suggested by Lord Mansfield, has for many years been recognized ; and the rules respecting bills of exchange have, therefore, been applied to negotiable notes actually indorsed. The analogy, however, is not perfect ; for in a bill of exchange, until presentment and acceptance, there are but two parties, namely, the drawer and the payee ; whereas in indorsed notes of hand, there are three parlies instantly upon the indorsement, which is to be considered the drawing ; and the rule, with respect to demand of payment, must adapt "tself to this difference of character.

It is said by the compilers of the law on the subject of bills and notes, that a promissory note payable on demand is like a bill pa) able at sight; so that, as in the latter case the holder must present his bill for acceptance within a reasonable time, in order to charge the drawer ; so in the former, the indorsee must make demand of payment on the promissor within a reasonable time, in order to charge the indorser. And we are of opinion, that this is the correct doctrine on the subject. For as, on the one hand, it can hardly be supposed, that the indorser and indorsee, when they make their contract, contemplate a * liability on the indorser, unless reasonable pains should be taken to procure payment of the actual debtor ; so, on the other, we do not think it enters into their calculations, that, as between them, the note should be considered due when drawn, in such manner as to require, in all cases, a demand, the instant, or the same day, it may have been indorsed.

As it respects the promissor himself, he is answerable immediately to the promissee or indorsee ; and he may be sued the instant.he has given his signature, even without a previous demand. But the condition, on which the indorser is liable, is, that payment shall be demanded within a reasonable time, and the earliest notice possible given of refusal. This time may, therefore, vary, according to the circumstances and situation of the parties, to be determined by the jury, under the direction of the Court. It is impossible to fix any precise period ; each case depending upon its own circumstances, as in the case of a bill payable at sight, which must be presented to the drawee as soon as can conveniently be done, taking into view all the circumstances of the holder and the drawee.

There is a difference then in the law, in relation to a note payable on demand, and one payable at a day certain. The former, although due on the day when it is signed, need not, of necessity, in all cases, if immediately indorsed, be demanded on that day. The latter must be demanded on the day it becomes due, without regard to circumstances, in order to charge the indorser ; unless indorsed after it becomes due, or perhaps so soon before the day of payment, that it would be impossible for the indorser to make the demand seasonably ; in which latter case a reasonable time must be allowed to make the demand upon the promissor.

So we think, that he who takes-, for a valuable consideration, a note of hand negotiable, within a day or two after it is signed, would not be subject to the claims of the promissor in nature of set-off, on the principle that the * note was over due when indorsed ; because the maker gives a credit to the note for a reasonable time after it is signed ; and, if he should pay it immediately after, leaving the note assignable in the hands of the promissee, without any indorsement thereon, he would perhaps be holden to pay it again to the indorsee ; for he would be considered as promising to pay the contents to any assignee who should within a reasonable time make demand of payment.

Whether any evidence of an understanding between the indorser and indorsee, that a note made and indorsed at the same time, as a security for a debt or to raise money, should lie without a demand according to the rule of law, would be admissible to enlarge the liability of the indorser, we have not occasion to determine in the present case. There are cases, however, where the indorser has been held, by certain acts, or by express declarations, to waive his right to insist upon a strict compliance with the rules. Such evidence would not tend to change, or even explain, the contract; but would proceed upon an admission of its legal effect, avoiding that effect by-proof of something like a new contract of the parties.

To apply the principles now stated to the case before us. The plaintiff was bound, by the tenor of his engagement with the defendant, to make demand of payment of the note within a reasonable time from the day of its execution ; as it was on the same day indorsed. He made no demand for.eight months, although all the parties lived in the same town, and were in habits of business together. Was this demand made in a reasonable time ? The jury have said, No, and they were perfectly justified in returning that answer ; and there is no doubt, that a much shorter time would have been sufficient to produce the same result.

It has been suggested, however, that there is evidence in the case of a waiver, on the part of the defendant, of any advantage resulting from the negligence on the part of the plaintiff; or at least of an enlargement of the time within which the demand ought to be made. The fact relied upon * for this is, that, when the defendant was called upon to indorse the note, he was informed by Redfield & Beers, that the note was not to be called for immediately.

This certainly does not amount to a waiver, either express or implied ; for it does not appear, that the defendant assented to any delay, he making no answer to this information. And indeed, if this evidence is to have any effect, it could not be more than to postpone the necessity of a demand for a reasonable time; of which the jury had full opportunity to judge.

Judgment according to the verdict.  