Leavitt v. Simes

Richardson, C. J. It is contended, that the witness, who was introduced to prove the notice to the defendant, ought not to have been permitted to state the contents of the paper which he delivered to the defendant, because no notice had been given to the defendant to produce it. But to this objection there are two answers. In the first place, it is never necessary to give notice to produce a paper containing merely notice, in order to render parol evidence admissible. 3 Caine's Rep. 174, Turner vs. Wilson.—1 ditto 364, Payton vs. Hallet.—13 John. 470, Johnson vs. Haight & a.—Peake's Cases 165, Shaw vs. Markham. In the next place, the nature of the action was a sufficient notice to the defendant to produce the paper. lie must have been aware, that without proof of notice the action could not be maintained, and that if there was any defect in the written notice, it would be material for him to produce it;, to rebut any testimony that might be adduced by the plaintiff to [16] prove notice. 14 East 274, How vs. Hall.—1 Camp. 143, Jolley vs. Taylor.—3 B. & P. 143, Bucher vs. Jurat. We have, therefore, no hesitation in overruling this objection. It is also contended, that the demand upon the maker was insufficient, because made before the note was due. When a note is made payable in a given number of days, generally, in reckoning the day of payment, the day of the date is excluded. 8 Mass. Rep. 453, Henry vs. Jones.—Chitt on Bills 205[189].—6 East 14, note, Excluding the day of the date of the note in the present case, the last day of grace was the 4th of April, 1820, and it is well settled, that regularly the demand ought to have been made on that day. It is clear then, that the demand in this case was made before the note became due, and is insufficient to charge the defendant, unless under the circumstances he must be considered as having waived the irregularity. It has been held, that a promise to pay, made with a full knowledge of the want of regular demand or notice, is a waiver of the irregularity. Chitty on Bills 186[171], 198[183].—7 East 231, Lundie vs. Robertson.—5 John. 248, Durgee vs. Dennison.—2 N. H. Rep. 340, Ladd vs. Kenney. And it has been decided in .Massachusetts, that evidence that it was the usage of the banks in a particular place to demand payment of the maker of a note on the first day of grace, that the endorser sought to be charged, was conusant, of this usage, and had in other instances conformed to it. was competent to be submitted to a jury, from which t;o infer the assent of the endorser to the usage. 4 Mass. Rep. 245, Jones vs. Fales.—11 ditto 85, Blanchard vs. Willard.—11 ditto 87, note, Wentworth vs. Chase.—6 ditto 449.—9 ditto 155.—10 ditto 336. Whether these decisions of ihe court in Massachusetts are sound law, it is unnecessary to inquire in this case ; because the facts found here do not present the same question. The usage of the banks is found, but it is not found, that the defendant had ever conformed to the usage, or even that he was conusant of it. There is then nothing, from which his assent to waive the want of a regular demand can [17] be inferred, and we entertain no doubt that the verdict must be set aside, and a new trial granted. We are of opinion, that it is not enough in this ease to shew the usage, and that the defendant was conusant of it. We think his assent to the usage is not to be inferred from the simple fact., that he had knowledge of it. If it ean*be shown, that he had conformed to the usage, it may deserve consideration whether his assent to it. might, not be inferred from his conduct. On the other hand, it will deserve very serious consideration, whether the admission of testimony to shew the usage and his assent to it, is not to admit parol evidence to vary the terms of a written-contract, it is said in the books, that, a promise to pay by an endorser is, in certain cases, a waiver of any irregularity in the demand and notice. But it will be found, upon examining the books, that the decisions rest upon the ground, that such a promise is evidence of a demand and notice. It is unnecessary to express any opinion on these points now ; but if this case is to be pursued, we thought it might he useful to make these suggestions at this time. Verdict set aside, and a new trial granted.