Wright

Defendant appeals from an order denying him a new trial.

Defendant is sued as the indorser of two promissory notes made payable to himself by one Hixon, and by him transferred, after maturity, to plaintiff. The complaint avers a demand upon Hixon, and due notice to defendant. A demand was proven, but no notice of the refusal to pay was given for several months after the refusal. No excuse for failure to notify the indorser is alleged or proven, but it is claimed that demand and< notice were waived at the time of the transfer.

Prior to the transfer, defendant had left the notes with his banker for collection, and had indorsed them for that purpose. Plaintiff had become the owner of the billiard-tables, and agreed to return them to defendant for the notes, provided defendant would indorse them. The notes were procured from the bank, and delivered to plaintiff as they were.

Plaintiff testified: “I asked him for the note's duly in *91 dorsed, and they were produced. I told him then if I should fail to collect the money from the other party I would come back on him. .... I stated at the time to Mr. Liesenfeld, if I could not make the money out of the other party that I would come…