Ross v. Hurd. evident, however, that the plaintiff either did not understand that demand and notice was necessary to charge an indorser, or supposed that what occurred between him and the indorser, on this occasion, made a protest unnecessary. He waited until the expiration of the second ninety days, and then went to the bank, with Kingsbury, and had a second interview with Hurd; and the liability of Hurd, in this action, depends upon what took place on that occasion. Kingsbury desired a still further extension of ninety days, and he procured from the bank (the defendant, Hurd, counting out the money for him) the sum necessary to pay the interest on the note to that time, and paid it to the plaintiff; and the plaintiff then spoke to Hurd about the extension of time, and Hurd replied: "You and Kingsbury can fix that about as you are a mind to." The testimony proceeds as follows: "he (Kingsbury) asked how I (plaintiff) would fix it; whether I would have a new note, or what; and I told him if both parties agreed I would let the note stand just as it was; and Hurd turned around from us, and said, then I will waive protest." This closed the conversation, and the plaintiff left the bank, and waited until the expiration of ninety days from that time, when he called upon the defendant, and informed him that the note was due, and that he would have to collect it; and soon after, the defendant claimed that the note had not been protested, and declined to pay it. Upon these facts the question is presented, whether the nonsuit was properly granted. When the parties met at the bank, on the second occasion referred to, Hurd had been discharged from his liability as indorser, by the neglect of the plaintiff to take the steps. necessary to fix his liability. But it was competent for the defendant to waive the objection arising from the plaintiff's laches, and to renew and continue his liability as indorser, and debar himself from setting up, when sued on the note, the want of protest as a defense. If an indorser, with full knowledge of the laches of the holder in neglecting to protest a note or bill, unequivocally assents to continue his liability, or to be responsible, as though due protest had been made, he is held to have waived the right to object, and will stand in the same position as if he had been regularly charged by presentment, demand and notice. This assent must be clearly established, and will not be inferred from doubtful or equivocal acts or language. It has been frequently held that a promise by the indorser to pay the note or bill, after he has been discharge! Ross v. Hurd. by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made. Trimble v. Thorne, 16 Johns. 152; Story on Prom. Notes, §§ 359, 362, and cases cited. A promise, made under these circumstances, affords the clearest evidence that the indorser does not intend to take advantage of the laches of the holder; and the law, without any new consideration moving between the parties, gives effect to the promise. The assent of the indorser to be bound, notwithstanding he has not been duly charged, may be established by any transaction between him and the holder, which clearly indicates this purpose and intention. In Duryee v. Dennison, 5 Johns. 248, the action was against an indorser who had not been regularly charged by demand and notice. No demand of payment was made until the day after the note became due. To avoid the defense based on this ground, it was shown that, after the note became due, the attorney for the plaintiff called on the defendant and informed him of the non-payment by the maker, and that the plaintiff looked to him for payment. The defendant was told at the same time that the demand and notice was irregular but the defendant "agreed to consider the demand and notice as made in due time, and himself liable as indorser." The court held that this was equivalent to a promise of payment, and authorized a verdict for the plaintiff. KENT, C. J., said: "We are of the opinion that the testimony of Aiken, as given at the trial, was sufficient to support the verdict. The law is now settled that if an indorser has not had regular notice of non-payment by the drawer, yet if, with knowledge of that fact, he makes a subsequent promise to pay, it is a waiver of the want of due notice, and assumpsit will lie." In the case at bar, we think the jury would have been authorized to find that the defendant, with knowledge of the fact that the note had not been protested, consented to be liable as indorser upon the note, and that his indorsement should stand as security to the plaintiff; and also the further fact that the plaintiff, in consideration of this consent, agreed to extend the time of payment of the note, and that such consent was given to induce such extension, without exacting a new security. In construing the transaction, the jury were entitled to consider the surrounding circumstances. The defendant was a banker, and familiar, as may be presumed, with the rules regarding the protest of commercial paper. His words, "I will waive the protest, then," had no significance, unless Campbell v. Smith. they were intended to remove the objection arising from the prior laches of the holder, in neglecting to protest the note at maturity. He intended, as is manifest, to continue his liability as indorser for the security of the plaintiff. He seemed to be willing to become obligated on a new instrument, or to renew his liability on the old. one, as the plaintiff and Kingsbury should arrange. And the plain inference from the conversation is, that the plaintiff consented to let the old note stand, on consideration that the defendant continued liable thereon; and the defendant's declaration could mean nothing less than that he would make no question as to the protest of the note, or as to his liability as an indorser. This case is stronger in reason, for holding the indorser, than where there is a simple promise to pay after maturity. The transaction here, not only indicates an intention on the part of the indorser to remain bound notwithstanding his discharge, but the waiver of the laches of the plaintiff was the consideration of the extension, given by the plaintiff to the maker. The nonsuit was improperly granted, and the judgment should be reversed, and a new trial ordered. All concur, except FOLGER and MILLER, JJ., absent. Judgment reversed. H. delivered to B., a deed, in blank as to the grantee's name, with recital that the amount of a mortgage on the premises was deducted from the consideration, and that the deed was subject thereto, and a covenant by the grantee to pay it. The grantor having authorized B. to insert any name as grantee, B., with defendant's knowledge and assent, inserted defendant's name, and recorded the deed, agreeing that any profits arising from a sale of the premises should be applied on an indebtedness of B. to the defendant's firm. The defendant afterward conveyed the premises; the plaintiff foreclosed the mortgage without making defendant a party, and a deficiency arising, brought this action to recover upon the covenant. Held, that defendant by consenting to the insertion of his name as grantee, assumed the position and liability of a purchaser from the grantor, and was liable on the covenant, and that the arrangement with B., being collateral, did not affect H. or the plaintiff.* * See Fiske v. Tolman (124 Mass. 254), 26 Am. Rep. 659, note, 660. A Campbell v. Smith. CTION on covenant by defendant to pay a mortgage on the granted premises, the deed reciting that it was subject thereto, and that the amount of the mortgage had been deducted from the purchase-price. The deed, executed by Hood, was delivered to Burtis with the grantee's name blank, with authority to Burtis to insert any name. Burtis being indebted to the defendant's firm, inserted his name and recorded the deed, with his knowledge and assent, with the agreement that any profits from a sale of the premises should be applied on that indebtedness. The defendant subsequently conveyed the premises, and the plaintiff foreclosed the mortgage without making him a party, and a deficiency arose. The defendant had judgment, which was reversed at General Term, and he appealed. D. P. Barnard, for appellant. Defendant was not a purchaser. Lawrence v. Fox, 20 N. Y. 268; Hartley v. Harrison, 24 id. 170; Burr v. Beers, id. 178; Thorp v. Keokuk Coal Co., 48 id. 253 ; Garnsey v. Rogers, 47 id. 233; s. c., 7 Am. Rep. 440. J. T. Marean, for respondent. CHURCH, C. J. We concur with the General Term that the case of Garnsey v. Rogers, 47 N. Y. 233, is not controlling in favor of the defendant. In that case a debtor conveyed to his creditor certain premises by deed as security for his debt, and it was held that an agreement in the deed that the creditor would pay a prior incumbrance was for the benefit and protection of the debtor, and did not inure to the benefit of the holder of the incumbrance, within Lawrence v. Fox, 20 N. Y. 268, and kindred cases; and that upon the payment of the debt, and a reconveyance of the premises to the debtor, with the assumption upon the part of the latter of the incumbrance, the creditor was released from all obligation upon his covenant in the deed. Here no such relation existed between Hood, the grantor, and the defendant. The former conveyed absolutely all her interests in the premises, and the defendant, by consenting to the insertion of his name as grantee and accepting the conveyance, occupied the position of purchaser. As between them the relation of grantor and grantee existed, with all the rights and obligations incident to that position. The covenant to pay the mortgage was absolute, and the mortgagee had the right to Spalding v. Rosa. enforce it. The principle that when A, for a valuable consideration, agrees with B to pay his debt to C, the latter can enforce the contract against A, has been repeatedly adjudicated, and is applicable to the transaction developed in this case. Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 id. 178; Ricard v. Sanderson, 41 id. 179; Thorp v. Keokuk Coal Co., 48 id. 253. The transaction with Burtis did not impair the right of Hood, nor the plaintiff as assignee of the mortgagee. That was an arrangement collateral to the deed, and affected only the parties to it. The relative rights of Burtis and the defendant are not involved in this action. The defendant consented to occupy the position of grantee in the deed, under an agreement with Burtis, which cannot affect the plaintiff. [Omitting minor points.] The judgment must be affirmed. Judgment affirmed. SPALDING V. Rosa. (71 N. Y. 40.) Contract for services - excuse for non-performance illness. The defendants agreed with the plaintiffs, proprietors of a theater, to furnish the "Wachtel Opera Troupe," to give a number of performances in their theater, the receipts to be divided in a specified manner. Wachtel, from whom the company took its name, and by whose name it was known, was the leader and chief attraction, and his connection with the company was the inducement that led the plaintiffs to make the agreement. Wachtel became unable to sing in consequence of illness, and the defendants consequently did not furnish the troupe. In an action for breach of the agree ment, held, that Wachtel's appearance was the principal thing contracted for, and was of the essence of the contract; that plaintiff would not have been bound to accept the services of the company without him; and that his sickness and inability to sing constituted a good excuse for non-performance of the agreement. A CTION for breach of contract. The plaintiffs were owners of the Olympic theater, in St. Louis. The defendants agreed. with them to furnish the "Wachtel Opera Troupe " for a specified |