Kilgore v. Bulkley

Storrs, J. It is admitted, that the indorsement, by the defendants, of the instrument in question, imposed on them a liability to pay to the plaintiffs the sum therein mentioned, provided a legal demand of payment was made, when due, and payment refused, and legal notice of such non-payment given to the defendants : and it is upon the legality of the demand and notice that the various questions arise in this case. The defendants claim, that the demand of payment was not made of the proper persons, nor at the proper time ; and that the notice of non-payment was not given to the proper persons, nor at the proper time, nor in legal form. If the demand was legally made, there is no objection to the notice, except to its form. — 383 — The declaration counts on an indorsement, by the defendants, of a promissory note, made by the Chelsea Bank, and - also on a draft or order on said bank, by the defendants. It also contains the common money counts, which, as no question arises on them, may be laid out of view. The instrument in question is conceded, by the counsel for the defendants, to be a promissory note ; but the result to which the court has come would be the same, whether it is to be considered as a note, or, in connexion with the defendants’ indorsement, an accepted draft or order, or, as it is otherwise termed, a certified check; provided it is a note of the bank, in the one case, or a draft or check on the bank, in the other. The defendants insist, that the bank is neither the maker nor the drawer. If this be so, it results, that the demand was improperly made, since it was made upon the bank alone. That the instrument, on its face, imports to be made by the bank, there can be no doubt. It is dated at the bank ; it is signed by Wheeler, officially, as president of the bank ; and it states the deposit of the sum mentioned in it, and which is to be repaid, to have been made in the bank. If, therefore, there is no want of authority to execute the instrument on behalf of the bank, it is binding upon it, and is to be deemed its obligation. A deposit, merely, in the bank, without any certificate, Would raise an implied promise by the bank to repay. An express promise to that effect, whether verbal or written, by any person authorized in fact or law to make it, is, of course, obligatory. And the indorsement oil the back of this instrument imports an order or draft, by the defendants, on the maker, and is a direction to such maker to pay the contents to the indorsees, which constitutes it a bill of exchange, and imposes on the parties the ordinary liabilities attached to that kind of paper. It is, however, claimed, by the defendants, that this instrument, not being signed by the cashier, as well as the president, of the Chelsea banking company, is not obligatory upon that institution, since it is not in conformity with the law of the state of New-York, under which it went into operation, the 21st section of which provides, that “ contracts made by any such [banking] association, and all notes and bills by them issued and put into circulation as money, shall be signed by — 384 — the president, or vice-president, and cashier thereofand - that it is, therefore, the note of Wheeler personally, and bin* ding on him alone. It is our prevailing opinion, that, by the true construction of this provision, it applies only to such contracts, notes and bills, as are made and intended to be used as a currency. It is susceptible of that meaning fairly, and without doing any violence to the language used or its grammatical connexion ; while to hold that it embraces also every express contract, of whatever description, or for whatever purpose, which these banking associations might, in the course of their business, have occasion to make, would constantly be productive of the most serious inconvenience and embarrassment: and the operation of it must be thus unlimited, unless it is confined to paper put into circulation as money. With regard to such paper, the requisition of the signatures of the two principal officers of the institution might have been, and probably was, considered as a necessary, or at least a proper, security to the public, as well as the stockholders. But we can conceive of no possible utility in extending it to all the other bargains and arrangements, including even the most unimportant, which these companies, from time to time, and perhaps daily, might find it necessary to make. And it is at least as consonant with the very language used thus to restrict it to a particular species of contracts, as to extend it to those of every description. It is not, however, necessary to settle the construction of this part of the New-Yorh banking law. If the claim of the defendants respecting it is correct, it will not relieve them. In the first place, if that provision of the law is to be deemed applicable to the paper in question, it is well settled in the cases of Bulkley & al. and of Witte v. The Derby Fishing Company, 2 Conn. Rep. 252. 260., that, however it might be, when a bank, or other corporation of a similar nature, authorized by their act of incorporation to contract in a particular mode, was endeavouring to enforce a claim founded on an instrument not executed in that mode ; yet, that they may, by a course of practice, render themselves liable on such instruments. The first of those cases was an action on a policy of insurance, and the other on a bill of exchange. By the act of incorporation, it was required, that the first should — 385 — be “ signed by the president, or, in his absence, by the assistant, and countersigned by the secretary and that the other should be “ signed by the president, and countersigned by the secretary.” The instruments, in both cases, were signed by the president alone. The last of those cases is precisely in point. Secondly, this paper does not shew, that it was executed by a bank organized under the act of New-Hork, which has been produced: and therefore, no defect is apparent on its face. The law is indeed a public act, but the organization of the institutions under it, is not public ; and it is only to a particular kind of banks in that state, that the act is applicable. The instrument, therefore, was not necessarily unavailing against the bank, but might be valid, consistently with what appeared on its face. But, in the last place, it is not competent for the defendants, in this action, to set up the invalidity of the instrument on account of the incapacity of the bank to make the contract embraced in it. By their indorsement of that instrument, they must be held to have warranted not only its genuineness, but its validity. Such indorsement constituted a draft on the bank, in favour of the plaintiffs ; and to permit the defendants now to raise this defence, would be opposed, as well to the whole current of legal authorities, as to good faith, and the policy upon which the principles established with regard to the negotiation of such paper is founded. As between the indorser and holder of negotiable notes, the former is not allowed to avail himself of the infancy or coverture of the maker, nor the forgery of his name, nor his incapacity to contract. Holy v. Lane, 1 Atk. 181. Taylor v. Croker, 4 Esp. Rep. 188. Codwise & al. v. Gleason & al., 3 Day 12. Smith v. Chester, 1 Term Rep. 654. Price v. Neal, 3 Burr. 1354. Smith & al. v. Mercer & al. 6 Taun. 76. The State Bank v. Fearing, 16 Pick. 533. Free & al. v. Hawkins, Holt's N. P. Ca. 550. Chitt. Bills 377. Bayl. 219. Chitty, in his treatise on Bills, (p. 106.) says, “the act of drawing a bill implies an undertaking from the drawer to the payee, and to every subsequent holder, fairly entitled to the possession, that the person on whom he draws, is capable of binding himself by his acceptance, and that he will pay it, when it becomes due, if presented in proper time for that purpose.” — 386 — It is not necessary for the holder to enquire for what reason • the bill was not paid. Mellish & al. v Simeon, 2 H. Bla. 378. In Barrell v. Parker, 7 Pick. 294. which was an action by the indorsee against the indorser of a note, signed by one who had been duly empowered for that purpose, by the raa-ker, as his attorney; the maker, however, having, without the knowledge of the attorney or defendant, died before the making of the note ; it was held, that the defendant was liable. Ch. J. Parker, in giving the opinion of the court, says: “ The indorser always warrants the existence and legality of the contract which he undertakes to assign. The indorsee takes it on the credit chiefly of the indorser.” “ The indorser is not at liberty to deny the validity of the contract which he has assigned, for the purpose of disputing his own liability.” The indorser must take the risk of the validity of the note which he assigns. He gives currency to it: in fact, warrants its genuineness, in respect of the indorsee.” It is unnecessary to consider whether, if the making of this instrument by the bank was prohibited, and thus made illegal by the laws of New-York, on the ground of public policy, so that in the language of Lord Ellenborough, in Atkinson v. Ritchie, 10 East, 530. “ the contract would not be capable of being performed without a criminal compromise of public duty,” the defendants could avail themselves of this circumstance against the plaintiffs, since, in our opinion, the law of New-York is not of this character. The counsel for the defendants have endeavoured to assimilate this, to those cases where the accommodation maker, acceptor or indorser has been permitted to defend against an indorsee taking negotiable paper, not hona fide, nor in the course of mercantile business. There is, however, no analogy between those cases and the present. The connexion between the defendants and the Chelsea Bank would, of itself, render the principle of those cases wholly inapplicable. As stockholders of that bank, the defendants received the benefit of the consideration for the indorsement in question. They were part owners of the property which was bought on the strength of the indorsement; and it was made for the very purpose of such purchase. There is no principle of law or justice, by which, under such circumstances, the defendants — 387 — can absolve themselves from the obligation which such in-dorsement imposed. Smith v, Knox, 3 Esp. Rep. 47. The demand, therefore, was properly made on the Chelsea Bank. The next enquiry relates to the time when the paper in question became due, and therefore when payment of it should have been demanded. The court was correct in informing the jury, that the case was to be governed by the law of the state of New-York, and in submitting to them on the evidence the question what that law was. This paper fell due, by its terms, on the 1st day of December, which happened to be Sunday ; and one of the questions between the parties was, whether, by the general law of the state of New-York, it was payable on the preceding Saturday, or subsequent Monday. To prove such general law on this point, the evidence consisted of two decisions in the state of New-York; one by the superior court of the city of New-York, having a local jurisdiction in said city, and the other by the supreme court of that state, a court of general jurisdiction throughout the state, and although not the court of the last resort, yet having jurisdiction to revise and correct the decis. ions of said superior court, together with a decision in our own supreme court, referred to, in the case last-mentioned. The defendants insisted, that the decision of the supreme court of the state of New-York was to be deemed conclusive evidence of the law of that state. The court, however, did not so charge the jury; but stated to them, that it was higher evidence, and entitled to greater weight, than that of the su. perior court. This is the most that the defendants had a right to claim. The decisions, introduced for the purpose of proving the law of New-York, had no artificial or arbitrary force or effect attached to them. It has been truly said, that precedents are not the law itself, but only evidence of the law; and such precedents, when introduced as mere evidence of law, are to be weighed like other evidence. The record of a judgment is indeed conclusive evidence of the facts on which it is founded; but the idea that the decision by any court, however respectable, on a question of law, is not to be re-examined or questioned, is entirely novel. And there is nothing in the relative situation of these two courts, whose-. — 388 — decisions were supposed to be at variance, to entitle the opin-ion of one to any authoritative or binding effect on the other. The exception to this part of the charge, therefore, is not well founded. The defendants, claiming to have proved, that, by the general law of New-York, paper of the description of that in question was entitled to the usual allowance of grace, and that, when happening to fall due by its terms on a Sunday, it became payable on the Monday succeeding, except to the admission by the court below of evidence offered by the plaintiffs to shew, that, by the usage and custom prevailing in the city of New-York, such paper was not entitled to grace, and that when so falling due on Sunday, it became payable on the preceding Saturday. The question, how far evidence of usage is admissible to shew, that, as to a particular species of negotiable paper, it is entitled, not to the usual number of days of grace allowed by the general law, but to a greater or less number, has received the most deliberate consideration of our courts of the highest authority, especially on commercial questions, and is most explicitly and decisively settled. In Renner v. The Bank of Columbia, 9 Wheat. 582. which was a suit against an in-dorser of a promissory note negotiated in the bank of Columbia, where payment was demanded and the note protested, on the fourth day after that mentioned in the note as the day on which it was payable, evidence was offered and admitted to shew, that this was in conformity with the custom of the bank, although it was admitted, that, by the general law, negotiable paper was entitled to only three days of grace ; and, upon exception taken to this decision, it was, on great deliberation, affirmed. In this case, the custom was known to the parties to the note. The same point arose afterwards, in the case of Mills v. The Bank of the United States, 11 Wheat. 430. where the custom was not known to the parties ; and there also it was held, that proof of such custom was admissible. The court say, that “ when a note is made payable and negotiable at a bank, whose invariable usage is, to demand payment and give notice on the fourth day of grace, the parties are bound by that usage, whether they have a personal knowledge of it or not. In the case of such a note, the parties are presumed, by implication, to — 389 — agree to be governed by the usage of the bank at which they have chosen to make the security itself negotiable.” In The Bank of Washington v. Triplett, 1 Peters 25. the same court sanction these cases, and decide further, that the same presumption exists in the case of a bill drawn on a person residing in a place where such usage was established, which was placed in such bank for collection, although it did not purport to be payable and negotiable in that bank. In Jones v. Fales, 4 Mass. Rep. 245. it was held, that, in the case of a note entitled by the general law to three days of grace, a demand upon the maker on the first, and a notice of non-payment to the indorser on the last day of grace, if in conformity with a usage at the bank where it was payable, would hold the indorser. Ch. J. Parsons, in giving the opinion of the court, says: “ This usage is evidence of the defendant’s agreement, proper to be submitted to the jury to infer from it the agreement of the defendant. Evidence of this kind and for this purpose, is not to establish new law, but to prove, that the defendant has waived a condition implied by law for his benefit, and has consented to other terms, to which, without question, he might have expressly agreed.” This case was subsequently sanctioned, in Widgery v. Monroe, 6 Mass. Rep. 459. and in The Lincoln & Kennebeck Bank v. Page, 9 Mass. Rep. 155. In Blanchard v Hilliard, 11 Mass. Rep. 85. it was held, that, on a note payable with grace, a demand on the maker on the day preceding the day when it was by its terms made payable, and a notice to the indorser on the * day preceding the last day of grace, was good, if conformable to the practice of the bank at which it was payable. See also Whitwell v. Johnson, 17 Mass. Rep. 452. In Osborne & Sistare v. Smith, decided in 1837, by the superior court of the city of New-York, it was held, by that respectable tribunal, (whose decisions, especially on questions of commercial law, are entitled to great weight,) that evidence of a usage in the city of New-York was admissible to prove, that a check on a bank in that city, payable on a day subsecpient to its date, was not entitled to days of grace ; and that, therefore, a dema'nd and protest on the day mentioned in it for its payment, would subject the indorser. Ch. J. Jones, delivering the opinion of the court, (of which, a manuscript copy has been furnished us,) says: “ The objection to the custom, — 390 — drawn from its supposed collision with the rules of the com- - mon law, cannot, in our views of it, be sustained, without impugning some of the best settled principles applicable to mercantile law. Usages constitute a large portion of commercial rules; and to that source solely, the allowance of days of grace on mercantile paper is to be traced. No rule of common law or statutory provision impressed that feature upon the character of commercial paper. It had its origin in usage, and to usage it owes its existence. It has now become, it is true, where it is applicable, parcel of the contract, and isno longer anindulgence of grace, but is, and long has been, a matter of right. A bill or a note payable at 60 days, is, in its legal effect, payable at 63 days ; but this custom does not apply to every species of commercial paper. In its application to bills, it does not exist at all places ; and it varies, moreover, at different places, in the time or grace it allows: and this case shews, we think, that with us it does not embrace checks on banks, though made payable at a day certain subsequent to their date, and notwithstanding their resemblance to inland bills of exchange.” And, after pointing out the difference between inland bills and checks, he continues: “Without dwelling upon these distinctions, we are satisfied, that if inland bills and checks are to be regarded as substantially alike, yet a usage or custom may well exist, by which grace would be denied to the one, though allowed to the other. The allowance of grace is wholly the child of usage; and a custom or usage that a particular species of paper or inland bills shall be payable without grace, is just as admissible and equally valid, as a custom or usage that another species of paper or inland bills shall be entitled to grace. The usage or custom which excludes grace, certainly does not more impugn or qualify the general rules of the law mérchant or of the common law, than the custom which allows it; and yet the custom which allows it, is acknowledged to be valid.” To these no opposing cases have been cited. We think, therefore, that on the authorities, the point is settled in favour of the admission of the evidence of usage on the subject of the allowance of grace. * It is admissible also, upon the principles on which courts generally admit evidence of this description. The object of allowing evidence of local usage or custom, is, usually, to as — 391 — certain and carry into effect the intention of the parties; for When it appears, that there exists, at the place where the con- ■ tract is to be performed, a usage so well settled, so uniformly acted upon, and of so long continuance, as to raise a fair presumption that it was known to the parties, it is reasonable to pre'sume, that the contract was made with reference to such usage and in conformity with it; and it, therefore, forms as much a part of the contract as if it had been expressly incorporated with it. In contractibus tacite veniunt ea, qua. sunt moris et consuetudinis. To ascertain the usage,4therefore, is one mean of arriving at the intention of the parties, and most conducive to the ends of justice, since it is the object of courts to ascertain and carry into effect the meaning of the parties. Experience and observation prove, that the engagements of individuals are in fact entered into with reference to the customs and usages which prevail in the community where they are made: they therefore tacitly agree to conform to them : and, so far from doing injustice, by regarding such customs and usages, it is the only mode by which justice can be attained. The presumption is, indeed, that those who enter into contracts, intend to be governed by the general principles of law. It is, however, competent for them to renounce those principles, where public policy does not forbid, and to adopt another rule of action ; and the prevalence of a particular local usage on the subject, variant from those general rules, in the absence of evidence to resist it, affords a rational ground of inference that they intended to do so. We think also, that evidence was admissible, to shew, that the paper in question, by the usage and custom prevailing where it was payable, became due on the Saturday preceding the day, when by its terms it was made payable, that day being Sunday. Payment could not be exacted or tendered on the day, when by its terms it was made payable, since that day is not recognized by the law as one on which a contract can be performed ; and it must therefore be made, either on the day preceding or subsequent. The terms of the contract, therefore, in this case, as to the time of its performance, are wholly indeterminate ; and the case falls within the class of cases in which evidence of usage is deemed peculiarly proper, in order to ascertain the meaning of the parties. Such evidence does not contradict the sense of the instrument, as ap — 392 — parent on its face. There is no substantial reason why the -day subsequent to that expressed for its performance should be preferred to that next preceding. As a general rule of construction, it is indeed settled, that, when the time expressed by a contract for the payment of a sum of money, happens to be Sunday, it shall be made on the succeeding day. This rule is, however, founded mainly on convenience and policy. But ordinary negotiable mercantile paper, entitled to grace, forms an exception to this rule, it being equally well settled, that such paper, when it happens to fall due by its terms on a Sunday, shall be, payable on the preceding Saturday. This exception was founded originally on mercantile usage merely, and when such usage became universal, it was established, like the usage which allows grace as a rule of law applicable to contracts of that description. If, by the general law, such paper, when not entitled to grace, follows the rule that applies to contracts generally, and would be payable on Monday, (which, for the purposes of the present question, must be assumed,) there seems to be no sensible reason why it may not be shewn, as evidential of the intention of the parties, that a particular species of such paper, by a usage or custom at the place where it falls due, is payable on the Saturday preceding the day, when by its terms it is made payable, with the same propriety as in the case of such paper which is entitled to grace. The argument, that the legal import of the contract is varied» by evidence of this description, is no less applicable to the latter than the former. We do not think, however, that the testimony of usage, which was received, in this case, is obnoxious to the objection, that its effect is to vary, by parol evidence, the written contract of the parties, and that its admission is, therefore, a violation of the rule of law, that parol evidence is not admissible to contradict, or substantially vary, the legal import of a written agreement, within the correct understanding of that well settled and salutary rule. As remarked by Thompson, J. in delivering the opinion of the court in Renner v. Bank of Columbia, 9 Wheat. 581. 588. “Evidence of usage or custom is never considered of this character; but is received for the purpose of ascertaining the sense and understanding of parties, by their contracts, which are made with reference to such usage or custom ; for the custom then becomes a part of the contract, and may not improperly be con — 393 — sidered the law of the contract; and it rests upon the same • • ⅜ . ... principles as the doctrine of the lex loci. All contracts are to be governed by the law of the place where they are to be performed; and this law may be, and usually is, proved as matter of fact. The rule is adopted for the purpose of carrying into effect the intention and understanding of the parties.” It is presumable, in the present case, that neither of the parties to the paper in question adverted to the circumstance that it would, by its terms, fall due on Sunday ; and it is much more reasonable to believe, that they intended to be governed by the custom prevailing in such a case, than that they had in view any merely arbitrary rule adopted as to other kinds of contracts. Indeed, in those cases where a rule of construction is adopted, not with reference to the actual intention of the parties, as apparent on the face of the contract, but on artificial or arbitrary grounds, we see no satisfactory reason why usage or custom, to which it may rationally and fairly be believed, that the parties intended to conform, may not be shewn, as evincing their intention; and this is a case of that character. Many of the cases on this subject are much stronger than the present. Without noticing them in detail, we would refer to Wilcox v. Wood, 9 Wend. 346., where it was held, that proof is admissible of a local custom that a lease from the first day of May in one year to the first day of May in the succeeding year, expires at noon of the last day ; and to Cowen’s notes 957. 974. and 975. to Phil-lipps’ Evidence, where those cases are brought together. The only remaining exception to the proceedings below relates to the charge on the subject of the form of the notice of non-payment. This objection has not been strongly pressed; and we think that the subject was placed on the correct ground. The rule given to the jury, was just, reasonable and intelligible ; and is fully sustained, by the authorities. Reedy v. Seixas, 2 Johns. Ca. 337. Mills v. The Bank of the United States, 11 Wheat. 431. Bank of Rochester v. Gould, 9 Wend. 270. Chitt. Bills, 365. Byles, 156. A new trial, therefore, should not be granted. In this opinion the other Judges concurred. New trial not to be granted.