Sec 572

It may be a question whether a condition is properly notified to the party whom it is sought to charge with it. This (as where conditions are set up by common carriers, and by vendors of goods at auction) depends on the facts of each particular case. If there be notice, and the condition is not illegal, the party affected is bound by it.2 But the notice, if printed on a ticket, receipt, or bill of lading, must be put in such a shape as to impose the duty of reading it on the party taking the document.3 "Whether the party should have taken notice of such conditions is a question for the jury.4 But when the conditions on a ticket or bill of lading are put in a shape which a business man ought to notice, then they will bind a party holding such ticket or bill of lading.5 - As to notice the following positions may be advanced: Ignorance of the contents of a contract will not ordinarily relieve a party who has signed it when charged with notice of a condition that the contract recites.6 And a condition inserted in a contract in such a way as would attract the attention of a person using due care binds, if not otherwise illegal, the party to the contract.7 It is otherwise, however, as to conditions inserted on tickets or other papers in such a way as not to attract attention. And rule that "where one party has knowledge of a material fact not known to the other party, he is hound to give notice."

Notice of condition a question of fact.

1 Sales, 2d ed. sec 577, citing Vyse v. Wakefield, 6 M. & W. 442, supra.

2 Bywater v. Richardson, 3 N. & M. 748; 1 Ad. & El. 508; Head v. Tatter-sall, L. R. 7 Ex. 7; Hinchcliffe v. Barwick, L. R. 5 Ex. D. 177. That assent must he definite to bind, see supra, sec 22. That agreements to release carriers from the consequences of negligence are against the policy of the law, see supra, sec 438.

3 Elmore v. Sands, 54 N. Y. 512, and cases cited, supra, sec 22.

4 Parker v. R. R., 1 C. P. D. 618.

5 Harris v. R. R., L. R. 1 Q. B. D. 515.

6 Supra, sec 196.

7 Supra, sec 22; Wh. on Neg. sec 587; Wh. on Ev. sec 1243; Austin v. R. R., 16 Q. B. 600; Behrens v. R. R., 6 H. & N. 366; Bk. of Kentucky v. Adams Ex., 93 U. S. 174; Squire v. R. R., 98 Mass. 239; McMilleu v. R. R., 16 Mich. 80.

Drawer and indorser entitled to notice of dishonor.

1 Supra, sec 22; Malone v. R. R., 12 Gray, 388; Verner v. Sweitzer, 32 Penn. St. 208; and cases cited Wh. on Neg. sec 587.

2 Redpath v. Tel. Co., 112 Mass. 71; Grinnell v. Tel. Co., 113 Mass. 279; Breeze v. Tel. Co., 48 N. Y. 132. See, contra, Sweatland v. Tel. Co., 27 Iowa, 433; and see supra, sec 22.

3 Leake, Am. ed. 645; Byles on Bills, 9th ed. 195. And this applies even to overdue notes. Dwight v. Emerson, 2 N. H. 159; Adams v. Torhert, 6 Ala. 865.

4 Wh. Con. of L. sec 454; Rouquette v. Overmann, L. R. 10 Q. B. 542.

5 Bickerdike v. Bollmann, 1 T. R. 405; Turner v. Samson, L. R. 2 Q. B. D. 23.

6 Warrington v. Furbor, 8 East, 242; Walton v. Mascall, 13 M. & W. 452.

7 Bowes v. Howe, 5 Taunt. 30. That notice may be waived, either directly or constructively, see Amoskeag Bk. v. Moore, 37 N. H. 539; Gove v. Vining, 7 Met. 212; Ridgway v. Day, 13 Penn. St. 208.

That while a waiver of demand is a waiver of notice, a waiver of notice does not operate as a waiver of demand, see 1 Pars. on Cont. 278, citing Lane v. Steward, 20 Me. 98; Buchanan v. Marshall, 22 Vt. 561; Berkshire Bk. v. Jones, 6 Mass. 324.

In Susquehanna Valley Bank v. Loomis, 85 N. Y. 213 (1881), it was held that notice to an accommodation indorser (the defendant), who was such to the knowledge of the plaintiff, was not excused by the fact that the note was forged, which fact 'the defendant was not shown to know, and could - The diligence to be used in giving notice is not perfect diligence, i. e., the party is not chargeable with culpa levissima in not be presumed to know. "It remains," said Danforth, J., "to consider the case of Turnbull v. Bowyer (40 N. Y. 456), cited by the appellant. There the names of persons to whom a check was payable were forged, and afterward it was innocently indorsed by the defendant. By his negligence it went into circulation, and reached the hands of one who, in good faith and without notice of the true relation of the indorser to the check, paid value for it, and was permitted to recover it back from him upon the ground that the indorsement was a warranty to every subsequent holder in good faith, that the instrument itself and all the signatures antecedent to such indorsement were genuine. It was decisive of that case that the payee's name was forged, and the remark that the implied warranty applied to the instrument itself was uncalled for by any fact in the case. In support of the proposition reference is also made to Story on Promissory Notes, sec 135, 379, 380, 387, and cases there referred to, and such is the citation by the appellant. But these merely assert a right of action against the indorser on the ground that he cannot complain if called upon to repay money received by him upon an indorsement of a void title, for the author says, ' There is a failure of the consideration on which the transfer was made.' In Daniels on Neg. Inst. language similar to that of Story is made use of (sec 669), but the cases cited in its support do not meet the facts of this case. They are like those before referred to, and only upheld the recovery of money from the person to whom it was paid. (Jones v. Ryde, 5 Taunt. 486.) There are, no doubt, cases in which an indorser is liable without notice of non-payment. Bick-erdike v. Bollman (1 Term Rep. 405) is said by Parke, B., in Carter v. Flower (16 M. & W. 743) to have made the first exception to the general law which requires such notice. There the indorser knew the draft was not to be paid; and another is illustrated in The Mechanics' Bank of N. Y. v. Griswold (7 Wend. 165), where the indorser had all the maker's property. But that any exception should be allowed has been many times regretted, because thereby nice distinctions were introduced into the law, and a plain and intelligible rule departed from. It has, however, been uniformly held that, whoever will avail himself of an exception to the general rule, must bring his case within it, either by some recognized authority, or the application of some legal principle. Such exceptions should not be multiplied. Turnbull v. Bowyer (supra) goes no farther than to make an indorser liable upon an implied warranty, that a prior indorsement, purporting to be that of the payee,was genuine; and upon the same principle it has been held that a bank certifying a check in the usual form simply certifies to the genuineness of the signature of the drawer, and that he has funds sufficient to meet it. It does not warrant the genuineness of the body of the check as to payee or amount. This was decided in The Marine National Bank v. The National City Bank (59 N. Y. 67), where the plaintiff certified a check which had been altered, by changing the date, name of payee, and raising the amount, and subsequently paid it to the defendant. It was decided by this court that respect to it;1 but is the diligence that good business men of the particular class are accustomed to use under similar circumstances.2