The opinion
Opinion by
Mr. Chief Justice Moore.
1. The question to be considered is the sufficiency of the complaint to state facts adequate to constitute a cause of action, and, if imperfect in that particular, the defect was not waived by answering over, after the demurrers were overruled, nor cured by the judgment. Section 72, B. & C. Comp.
2. The blemish in the plaintiff’s primary pleading, as asserted by defendant’s counsel, consists in the failure to allege a presentment of the note sued on to the maker at its maturity; a demand.made upon him for the payment thereof; and a notice of the dishonor given to or served upon the indorsers; or the averment of such facts as would show a waiver of, or an excuse for, a noncom *7 pliance with these requirements. The implied contract of indorsement is that, if at maturity the maker of a negotiable instrument, upon the presentation thereof and demand for the payment of the sum due thereon, neglects or refuses to comply therewith, the indorser, upon notice of the dishonor, will take up the obligation. Section 4486, B. & C. Comp.: Jackson v. McInnis, 33 Or. 529 ( 54 Pac. 884 : 55 Pac. 535 : 43 L. R. A. 128: 72 Am. St. Rep. 755 ).
The note in question matured September 1, 1906, at which time it should have been tendered to Holmes, the maker, for payment (Section 4473, B. & C. Comp.), unless presentment thereof was dispensed with in some manner (Section 4484, B. & C. Comp.). Notice of the dishonor should have been given to the indorsers, Brown and Fannie Barton (Section 4491, B. & C. Comp.), unless the necessity for such information had been waived (Section 4511, B. & C. Comp.), or was not required in order to hold an indorser (Section 4520, B. & C. Comp.).
3. When a complaint undertakes to state the facts necessary to charge an indorser, it must aver presentment, demand, and nonpayment, and notice of the dishonor, or show that such requirements have been waived or are not essential in consequence of the contract or of the act of the parties. 14 Enc. Pl. & Pr. 534; Edwards, Bills & Notes (3 ed.) § 948; 8 Cyc. 126; Lightstone v. Laurencel, 4 Cal. 277 ; Dowling v. Hunt, 2 Ariz. 8 ( 7 Pac. 496 ) ; Malott v. Jewett, 1 Kan. App. 14 ( 41 Pac. 674 ) ; Galbraith v. Shepard, 43 Wash. 698 ( 86 Pac. 1113 ).
The complaint herein does not bring the case within the sections of the statute hereinbefore noted, and hence is insufficient. The judgment is therefore reversed as to the defendants, Brown and Fannie Barton, and the cause is remanded, with directions to sustain their demurrers.
Reversed.