President of the Prescott Bank v. Caverly

Bigelow, J. We see no reason for disturbing this verdict. 1. The defendant could not control his indorsement of the draft, by parol evidence, showing that he was not to be held liable as indorser. By placing his name on the back of the draft, before it was received by the plaintiffs, he entered into a contract with the holder, in legal effect the same as if his whole liability had been written out in full over his signature. The draft was taken by the plaintiffs in due course of business, and before its dishonor. The defendant placed his name upon it under that of the payee. This made him an indorser, with all the incidents and liabilities of that relation, and he cannot now control them by verbal testimony. Riley v. Gerrish, 9 Cush. 104. Hoare v. Graham, 3 Campb. 57. Chit. Bills, (10th Amer. ed.) 144. 2. Nor could he controvert the capacity of the payee to indorse the draft and pass the title to it to himself, and through him to the plaintiffs. By placing his own name as indorser on the draft, he admitted the legal ability and signature of every antecedent party. Byles on Bills, (6th ed.) 355. Lambert v Pack, 1 Salk. 127. Critchlow v. Parry, 2 Campb. 182. [221] 3. The draft being payable at sight, it was necessary to present it within a reasonable time after it was received from the indorser by the plaintiffs. They were not bound to forward it immediately, but only to use reasonable diligence in transmitting it. If guilty of no unreasonable or improper delay in its presentation, then, upon its nonpayment by the drawees, they had a right tc have recourse to the defendant as indorser. Byles on Bills, 139. Mellish v. Rawdon, 9 Bing. 416, and 2 Moore & Scott, 570. Mullick v. Radakissen, 9 Moore P. C. 66. Bridgeport Bank v. Dyer, 19 Conn. 136. Ordinarily, the question whether a presentment was within a reasonable time is a mixed question of law and fact, to be decided by the jury under proper instructions from the court. And it may vary very much, according to the particular circumstances of each case. If the facts are doubtful, or in dispute, it is the clear duty of the court to submit them to the jury. But when they are clear and uncontradicted, then it is competent for the court to determine whether the reasonable time required by law for the presentment has been exceeded or not. Gilmore v. Wilbur, 12 Pick. 124. Holbrook v. Burt, 22 Pick. 555. Spoor v. Spooner, 12 Met. 285. In the present case, we think the ruling of the court on this point was correct; and that, on the evidence, the draft was seasonably presented for acceptance. This view of the case renders it unnecessary to express any opinion as to the competency of the evidence of the usage of the banks tn Lowell in regard to drafts like that declared on. Independently of such usage, on the undisputed facts of the case we are of opinion that the presentment of the draft fcr acceptance was seasonable. The evidence of usage was therefore immaterial. Exceptions overruled.