Skelton v. Dustin

Mr. Justice Sheldon delivered the opinion of the Court: The exclusion of testimony is made the ground of one assignment of error. It is not entirely clear that the offered testimony of Barker as to Dustin cashing drafts for the witness drawn by him on W. C. Barrett & Co., might not have been properly received as showing, with other evidence, the circumstances under which the money was paid by Dustin to Skelton for the bill; but as there is no evidence bringing home to Skelton any knowledge of the cashing of such drafts, or arrangement for cashing them, we incline to think that for this reason the testimony might properly be rejected. Besides, the testimony already in showed sufficiently a promise to cash such drafts, which would establish such alleged arrangement under which it is claimed the money was paid by Dustin, and to show instances of the performance of the promise would be but cumulative testimony to an undisputed point, viz: the arrangement alleged. We think there was no material error in excluding this evidence. As to the offered evidence of the defendant himself of the conversation which took place between him and Dustin at the time of the making of the indorsement, the effect of it, so far as could be of benefit to the defendant, would be to impair the legal effect of his indorsement in blank by proof of a different parol agreement. This is not admissible, as has been repeatedly ruled by this court. Mason v. Burton, 54 Ill. 349; Jones v. Albee, 70 id. 34; Beattie v. Brown, 64 id. 360. In the latter case, after expressing disapproval of the cases cited on the argument, which were to the effect that a blank indorsement is not really a written contract, but one resting in parol, and open to explanation by parol, it was said: “It can not be a parol contract where the payee indorses a note in blank, for there is, in legal contemplation, written over his name, the extent and character of his undertaking, which can not bé varied by parol,” and see Prescott Bank v. Caverly, 7 Gray, 217; Howe v. Merrill, 5 Cush. 80; Dale v. Gear, 38 Conn. 15; Woodward et al. v. Foster, 18 Gratt. 200; Charles v. Denis, 42 Wis. 56; Rodney v. Wilson, 67 Mo. 123; Coon v. Pruden et al. 24 Minn. The attempt in the present case was to vary by parol—by the conversation of the parties at the time—the legal effect of the indorsement in blank made by the payee. The surrounding circumstances, except as first noted, under which the indorsement was made were given in evidence, which is all we think the defendant was entitled to, and that the further offered evidence of the conversation at the time of the indorsement was properly excluded. It is urged that a sight draft matures when presented for payment, and if not then paid, must be protested for nonpayment on the same day, and due notice given, in order to charge the drawer and indorser,—Strong v. King, 35 Ill. 9; that here the draft was presented on the 10th, and not pro-' tested until the 13th of September; and hence it is claimed the indorser was discharged. This is answered by the proof, which was made at the trial, of the statute of Indiana allowing three days of grace on all bills of exchange payable within the State, whether sight or time bills. The law of the place of payment must govern as to whether days of grace are allowed on commercial paper. Bowen v. Newell, 3 Kern. 290; Mason v. Dousay, 35 Ill. 424; Edwards on Bills and Prom. Notes, 554. But if this be so held, it is then insisted that notice must be given according to the law of the place where the contract of the drawer or indorser was made, such being an implied condition,—Aymer v. Sheldon, 12 Wend. 439; Edwards on Bills and Notes, 587 marg.,—and it is claimed that notice in this case should have been given in pursuance of the provisions of our statute, Rev. Stat. 1874, p. 722, sections 11 and 12, which was not done. These provisions are, that it shall be the duty of each and every notary public in this State protesting a bill of exchange for non-payment, to give notice thereof in writing to the maker, and to each and every indorser of such bill, on the same day, or within forty-eight hours of such protest. If the maker or indorser reside, more than one mile from the place of protest, then such notice to be forwarded by mail or other safe conveyance. The provisions referred to have no application to the present case. They relate only to notaries public residing in this State, and are but declaratory of the duties of notaries public of this State upon the subject. There is no claim that the notice here given was not in accordance with the rule of the law merchant; but it is only objected that the notice provided in the above named sections of our statute was not given. The objection is not well taken. It is said that a bill of exchange should be presented for payment on the day it is payable, during the business hours of that day, Strong v. King, supra; and it is claimed, therefore, that it must be affirmatively shown, which it is said was not done in this case, that the bill was so presented during business hours. The only evidence there is as to the time of day the bill was presented for payment is found in the notarial certificate of protest, which states that the notary, “after the close of bank hours, presented the same (the bill) at the office of W. C. Barrett & Co., Indianapolis, Indiana, and demanded payment thereof, the time limited for payment having expired.” The certificate is presumptive evidence of presentment during the proper hours of business. These, except where the paper is due from a bank, for the purpose of presenting a note or bill for payment, range through the whole day down to bed-time in the evening. The Cayuga County Bank v. Hunt, 2 Hill, 635; Farnsworth v. Allen, 4 Gray, 453; Edwards on Bills and Notes, 526 marg. There is no evidence that W. C. Barrett & Co. were bankers. The statement that the “time limited for payment had expired” does not import, as is contended, that the presentment for payment was after the close of business hours. It means no more, we think, than that payment of the bill had become due. The instructions in this regard, asked by the defendant, were properly refused, there being no evidence upon which to base them. It is lastly objected that the court instructed the jury that a part of the measure of damages was five per cent of the face amount of the bill, and that the jury assessed such damages. The language of the statute in this respect being, “ and in case suit has to be brought on such bill of exchange, (shall pay) five per cent damages in addition,” it is insisted that the right to such damages does not accrue until after suit brought, and that such amount can not be included in the assessment of damages by the jury. This construction would necessitate a separate suit for the five per cent damages. We can not adopt that construction, but must hold such damages to be properly recoverable in this suit upon the bill. Finding no error in the record, the judgment will be affirmed. Judgment affirmed.