Atlas National Bank v. National Exchange Bank

Loring, J. In the former opinion in this case, 176 Mass. 300, we stated at length the grounds on which we were of opinion that there had been a mistrial, and it is not necessary now to restate them in detail. There was evidence (1) that sending the note through the clearing-house was a presentment of it for payment, and (2) that, although there was not a universal custom to send notes through the clearing-house, there was a universal custom among those banks which did so, by which the time was fixed when the conditional payment became absolute, in case the note sent through the clearing-house had not been returned; on this point, there seems to have been no conflict in the testimony. As to what that time was, there was some conflict; but with the single exception of-the testimony of the cashier of the plaintiff bank, who was responsible for the note in question not having been returned earlier in the day, it appeared that the note was not returned within the time fixed by the custom. And further, there was evidence that, (3) even if the custom was not universal, the conditional payment of this note had become absolute ; the evidence warranting that finding is the testimony of the cashier of the plaintiff bank that when the treasurer of the Hose Company told him at or about three o’clock that it had made an assignment, he said to him that his bank had. paid the note and that he had paid it to accommodate the Hose Company. This testimony, coupled with the evidence of the custom (even if it was found not to be a universal one), and the evidence that notes were habitually sent through the clearinghouse by the two banks in question, justified such a finding; the obvious, if not the only, meaning of it is that, by not returning the note, he, the cashier of the plaintiff bank, had designedly omitted to return the note, with the intention of allowing the conditional payment to become an absolute one, to accommodate the Hose Company, which was one of its depositors, and had thereby paid it for the company, though not in funds at the time. Had it not been for the testimony of the same witness that, where time is given on a note, which has gone through the clearing-house, there is no exact hour at which the note must be [534] returned, unless it is necessary to return it before the safe of the bank in question is locked for the day, and that the note in question was seasonably returned, it is hard to see why the defendant would not have been entitled to a finding in this connection as matter of law. These issues of fact were not passed upon by the presiding judge as they should have been; and the presiding judge was wrong in ruling that a custom would be invalid, which fixed a time within business hours when the conditional payment of a note, made by the note having gone through a clearing-house, becomes absolute. For these reasons there was a mistrial. The plaintiff contends that the error of the judge in making this ruling does not entitle the defendant to a new trial because the judge found as a fact that no such custom existed. We do not think that the report should be so construed; the finding was: “ I find also that such a rule has not been established by a universal, uniform and general custom, and rule that a custom, if one exists, to return such notes before the end of the business hours of the receiving bank would be bad.” This is followed by an elaborate argument in support of this ruling, which covers three and one half pages of the printed record. Taking the two parts of the sentence together, the report should not be construed, as the plaintiff contends, to be a finding of fact. It is stated in the- present report that the clause setting forth the terms, on which the case is to be disposed of, was inserted by the judge because he thought no other course was open to him under the former opinion. In the former opinion we did not intend to give any directions on that point and for that reason we think that this report should be discharged. Report discharged ; new trial granted.