438 money on the note,37 or to identify the payee." In like manner, a surety cannot show that he signed the note merely to encourage the principal, and was not to be liable, or was to be liable only for a few days.440 439 442 or But it has been held that it may be shown that an indorser (after maturity) was to be liable only if the maker proved insolvent,**1 or if the holder returned the note promptly on its dishonor, with the proviso that the maker be first sued.*43 But it cannot be shown that the indorsement created no contract whatever,*** or that the indorser, by a contemporaneous verbal agreement, waived presentment and notice of dishonor,*45 or the diligence required by statute, or intended to become liable as co-maker.447 446 An agreement may, however, be shown that notes discounted at a particular bank, and naming no place of payment, may be demanded at the bank." 448 437 Hall v. Newcomb, 7 Hill (N. Y.) 416. 438 Stack v. Beach, 74 Ind. 571. Or as director of the corporation maker, to approve its act. Gibson v. Machine Co., 124 Mass. 546. 439 Dendy v. Gamble, 59 Ga. 434, 440 Mansfield v. Barber, Id. 851. 441 Taylor v. Scholfield, 2 Cranch, C. C. 315, Fed. Cas. No. 13,804. 442 Brewer v. Woodward, 54 Vt. 581. 448 Wright v. Latham, 7 N. C. 298. And see Iredell Co. Com'rs v. Wasson, 82 N. C. 308; Cake v. Bank, 116 Pa. St. 264, 9 Atl. 302. 444 Geneser v. Wissner, 69 Iowa, 119, 28 N. W. 471. name was written across the face of the note, only to of it, Perry v. Bray, 68 Ga. 293. And that the payee's signify his acceptance 445 Bank of Albion v. Smith, 27 Barb. (N. Y.) 489; Anderson v. Yell, 15 Ark. 9. And see § 1369, supra. But a parol waiver may be given on the day of maturity, Mills v. Beard, 19 Cal. 158; or on indorsement after maturity, Sanborn v. Southard, 25 Me. 409. But see, contra, Patterson v. Vose, 43 Me. 552. 446 Allen v. Rundle, 50 Conn. 9. 447 Harvard Pub. Co. v. Benjamin, 84 Md. 333, 35 Atl. 930. 448 Pearson v. Bank, 1 Pet. 89; Marshall, C. J., saying: "This is not an attempt to vary a written instrument. The place of demand is not expressed on the face of the note, and the necessity of a demand on the person when the parties are silent is an inference of law which is drawn only when they are silent. A parol agreement puts an end to this inference, and dispenses with a personal demand." But see Bank of Alexandria v. Deneale, 2 Cranch, C. C. 488, Fed. Cas. No. 846. And, if it is made payable at a bank, it cannot Full consideration has been given in an earlier part of this work to the admissibility of parol evidence to qualify an indorsement in blank,*** or to show the relation of successive indorsers inter se.450 1 Contemporary Writing. § 1904. The rule against parol evidence to alter a written instrument by a contemporaneous verbal agreement does not apply where the contemporaneous agreement offered is also in writing, although it may, in effect, do away with the note or indorsement; 451 or to an agreement that has been already acted on; or to a case where it would be a fraud on the maker to allow the payee to enforce a note which had been given him for a special purpose.453 452 be shown that it was not negotiated there, and that notice was, therefore, unnecessary. Anthony v. Pittman, 66 Ga. 701. 449 See § 778, supra. 450 See 8741, supra. 451 Davis v. Brown, 94 U. S. 423. And an indorser cannot disclaim a waiver of demand and notice, expressed in a written memorandum on the back of the note, by showing that he did not regard it as part of his contract. Farmers' Bank of Kentucky v. Ewing, 78 Ky. 264. But the charter of an insurance company forms no part of the contract contained in a previous note, and a contemporaneous verbal agreement that it should control the note cannot be shown. American Ins. Co. v. Gallahan, 75 Ind. 168. As to the effect of contemporaneous agreements, see § 197, supra. 452 Manufacturers' Bank of Troy v. Scofield, 39 Vt. 590. 458 Schindler v. Muhlheiser, 45 Conn. 153. (2661) |