maker and indorser, taken together, will excuse notice of nonpayment, is a conclusion so sensible that it must stand unless plainly opposed to the words of the statute. That this is the law merchant is not denied. To present for payment in order to charge an indorser, where the indorser has already told the holder that he cannot pay the note either as maker or indorser, seems a useless ceremony; but it is a matter of substantial importance, by comparison with giving notice to the indorser who has waived presentment, that he (the indorser) has not paid the note as maker. The notice, if given, would run substantially thus:

"Please take notice that you have not paid the note which, in accordance with our agreement, I have not presented to you, for payment.'

"The facts which were held to constitute a waiver of demand were held also to constitute a waiver of notice in most or all the cases above cited. Waiver of notice seems to have been implied from waiver of presentment.

"That notice would be excused by waiver even in the absence of an express provision of statute, I am inclined to think; but this case seems fairly covered by the statute itself. By section 115 notice of dishonor is not required 'where the indorser is the person to whom the instrument is presented for payment.' The instrument here was not presented to Hodges for payment, because he had given the creditor to understand that presentment would be useless. The exception was inserted to avoid the necessity of giving notice of a fact which, by the terms of the exception, must be within the personal knowledge of the man notified."

See Taunton Bank v. Richardson, 5 Pick. (Mass.)

436.

In 2 Daniel on Negotiable Instruments (5th Ed.), § 1103, it is said:

"Any act, course of conduct, or language of the drawer or indorser calculated to induce the holder not to make demand or protest or give notice, or to put him off his guard, or any agreement by the parties to that effect, will dispense with the necessity of taking these steps, as against any party so dealing with the holder. And even though a statute requires the waiver of demand and notice, to be valid, must be in writing, it has been held

that the course of conduct of the indorser may be such as will estop him from denying that the note was duly protested. Where the party told the holder 18 months before maturity not to protest it, as it should be paid at maturity, it was held a waiver of demand and notice. So where the indorser informed the holder that the maker had absconded, and requested forbearance. So where, on the first day of grace, the indorser requests time, and says that an arrangement will be made, notice is waived; so where the drawer or the indorser informs the holder that the bill will not be paid, or that he cannot pay it when due, it is a waiver of demand, protest, and notice."

See, also, Valley Nat. Bank of Lebanon v. Urich, 191 Pa. 556 (43 Atl. 354); First Nat. Bank of Iowa City v. Ryerson, 23 Iowa, 508.

In 4 Am. & Eng. Enc. Law (2d Ed.), p. 463, it is said:

"Effect of promise to pay made after maturity.-It is a well settled doctrine both in England and in the United States that if the drawer or indorser, with full knowledge of the neglect of the holder to exercise due diligence, promises to pay the bill or note, or in any way unequivocally assents to continue his liability as though due diligence had been used, he is held to have waived the consequence of the laches, and will stand in the same position as if he had been regularly charged by presentment, demand, and notice."

See, under this head, Parsons v. Dickinson, 23 Mich. 56, and the many cases cited in the note. Compton v. Blair, 46 Mich. 1 (8 N. W. 533); Union Bank of Georgetown v. Magruder, 7 Pet. (U. S.) 287; Hunter & Keller v. Hook, 64 Barb. (N. Y.) 468.

In 1 Morse on Banks & Banking (4th Ed.), p. 502, occurs the following language:

"(6) Any express or implied waiver of demand or notice is an excuse, as if the drawer or an indorser agrees to waive notice, or so acts as to induce the holder to believe that he waives it, and so estops himself, it is an excuse as to such drawer or indorser.

"(7) A promise to pay or acknowledgment of liability by drawer or indorser after maturity, and with knowledge that proper demand and notice have not been given, is a

waiver. And a part payment after maturity is such an acknowledgment. Part payment of a check before maturity is a waiver of demand and notice.

"(8) If the drawer have no reasonable expectation that the bill will be honored, or that he will be able to secure funds to meet it, it is not necessary, as against him, to present or notify; but as against innocent indorsers the usual formalities are necessary. A declaration by the drawer that the paper will not be honored excuses presentment and notice. So, if the drawer of a check have no funds, or insufficient funds, or withdraws his deposit, or orders the bank not to pay the check, no presentment and notice is necessary as to him-he can suffer no loss by its absence-but as to an indorser such facts are no excuse, unless he knew of the drawer's fraud, and so participated in it."

It has been repeatedly held, as to the drawer of a check, that, if he had no funds in the bank to meet the check had it been presented in proper time, no harm is done him if the check was not presented. Carson, Pirie, Scott & Co. v. Fincher, 129 Mich. 687 (89 N. W. 570, 95 Am. St. Rep. 449). In the same case, reported in 138 Mich. 666 (101 N. W. 844), Justice HOOKER, speaking for the court, said:

"Authorities are numerous that delay in presentment and failure to give notice of dishonor cannot be successfully interposed as a defense in an action against the drawer, when it can be said that the drawer had no funds in bank, and had no expectation that the check could be paid."

In First Nat. Bank of Detroit v. Currie, 147 Mich. 72 (110 N. W. 499, 9 L. R. A. [N. S.] 698, 118 Am. St. Rep. 537), MCALVAY, C. J., speaking for the court, said:

"The fact that there are no funds in the account against which the check is drawn does not relieve the holder from presentment and notice of dishonor to the indorser, unless it appears that the indorser knew it. 2 Daniel on Negotiable Instruments (5th Ed.), § 1596; 1 Morse on Banks & Banking (4th Ed.), § 262, subd. 8.”

In the case at bar the note was made payable to Frank

L. Bessenger or order. It was never indorsed by him; it was made payable at a bank. It was made by a corporation and was indorsed before its delivery to the payee by the defendants who were directors of the corporation and in its active management. Prior to Act No. 265, Pub. Acts 1905, these indorsers would have been held as joint makers by a long line of our decisions commencing with Wetherwax v. Paine, 2 Mich. 555. These cases

are collected in Bunker on Negotiable Instruments, p. 120. Whether they would be so liable now we express no opinion. As we have already seen, that act recognizes that presentment and notice may be waived.

It is the claim of the plaintiff that not only did the corporation know that it had no funds in the bank with which to pay the note, but that the indorsers knew of this fact and had assured him that the note could not be paid at maturity. To have presented this note would have been an idle ceremony. If plaintiff's version is to be believed-and the jury evidently did believe it-neither the corporation nor the indorsers expected the note to be presented.

We think, under the circumstances of this case, that the charge of the court is not error.

Judgment is affirmed.

HOOKER, MCALVAY, BROOKE, and STONE, JJ., concurred.

GILBERT v. ANN ARBOR RAILROAD CO.

1. EVIDENCE - HEARSAY RES GESTÆ DECLARATIONS OF DECEASED.

As a part of the res gestæ, declarations made by plaintiff's intestate, knowing that he was dying, immediately after being carried 400 feet from the place of his injury, that he stepped into a hole in defendant's scales on the track, are competent in an action for his death while acting as defendant's brakeman.'

2. NEGLIGENCE-MASTER AND SERVANT-RAILROADS-DEFECTS IN

ROADWAY.

The existence of a hole in the platform of scales on defendant's track in a place not readily to be observed, being undisputed, the question of defendant's negligence in failing to provide a reasonably safe place for its brakemen to perform their duties was for the jury.

3. MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE-PRESUMPTION OF DUE CARE-DEATH.

An employé killed by reason of alleged neglect of his employer is, in the absence of any evidence to the contrary, presumed to have exercised due care.

4. SAME

ASSUMED RISK-OBVIOUS DANGERS.

The obvious character of the risk and decedent's knowledge of danger arising from the defect were questions of fact.

5. SAME-DEFENSES-NEGLIGENCE.

The alleged defense that deceased caught his foot between the rails of the main and scales track, if supported by evidence, was for the jury.

Error to Benzie; Chittenden, J. Submitted February 15, 1910. (Docket No. 178.) Decided April 1, 1910.

Case by Genevra Gilbert, administratrix of the estate of Arthur Gilbert, deceased, against the Ann Arbor

As to admissibility of declarations of injured party as part of the res gesta, see note to Ohio & Mississippi R. Co. v. Stein (Ind.), 19 L. R. A. 748.