Babcock

This is an action upon a promissory note made by one Story, payable to the order of plaintiff ninety days after date, and containing the following *101 provision: “ Should suit be commenced, or an attorney employed to enforce the payment of this note, I agree to pay an additional sum of five per cent on principal and accrued interest as attorney’s fees in such suit.” The note was executed at the instance and request of the defendant to take up another note on which he was liable; and before its delivery he indorsed it by writing his name upon the back thereof, and then delivered it to the plaintiff.

The complaint contains no averment that demand for the payment of the note was ever made on the maker, or that notice of its non-payment was given to the defendant before the action was commenced; and the answer denies that defendant, by his indorsement or otherwise, waived protest, or demand, or notice of non-payment, or that he guaranteed the payment of the note; and avers that notice of non-payment was never given him by the plaintiff, or any other person.

After trial, the court found the facts, and, as conclusions of law, “ that by the writing of his name upon the back of said…