Grinman v. Walker

WRIGHT, C. J. No exceptions were taken to the action [428] of the court below in giving and refusing the instructions now complained of, and we therefore pass them without further notice. Upon the trial it appeared that the defendants, Knight and Mills, were residents of the city of Keokuk, and that the notary directed notice of protest and non-payment to them through the post office; the note being payable, and protested in that city. Plaintiff then proposed to prove that said defendants did actually receive said notice on the day that they were entitled to the same. This testimony was objected to and the objection sustained. The rule of the commercial law is, that if the parties live in the same town, notice should not be sent by mail. It must be sent either to the place of business or the residence of the party to be notified. (Parson’s Mer. Laws 114; Pierce v. Pender, 5 Met. 352 ; Williams v. Bank U. S., 2 Pet. 100. See chapters 25 Laws 1858, passed-since this notice ivas given.) If it is put into the post office, however, and did in fact reach the indorser, or party to be notified, on the day he was entitled to it, such notice is sufficient. Bank U. S. v. Corcoran, 2 Pet. 124. The note was made payable at a banking house in the city of Keokuk. Plaintiff proposed to prove that it was the custom of these banking houses to give notice to indorsers through the post office, as was done in this instance, and that defendants knew of this custom. This testimony being objected to, was rejected. It is objected that this usage, or custom, if proved, would be inconsistent with the rule of law, above referred to, and would therefore be void. It is indisputably true that parties to a contract may vary, or restrain by express stipulation certain rules of law, so far as they would otherwise apply to, and govern their contract. Usage when established, affords the same evidence of intention as the most direct language, and may have the same effect upon the application of legal rules. If, therefore, it would be competent to prove that the parties contracted that notice should be given through the [429] post office, tbe same may be shown by proving a usage to that effect; and that either may be clone, we think is well established. Smith’s Mer. L. 312; 2 Par. on Cont. 50-51, note z; Mills v. Bank U. S., 11 Wheat. 431; Bridgeport Bank v. Dyer, 19 Conn. 136; Whitewell v. Johnson, 17 Mass. 450; contra, Wilcox v. McNutt, 2 How. Miss. 775. Judgment reversed.