3 N.H. 132 | Superior Court of New Hampshire | 1824
delivered the opinion of the court.
The question to be decided in this case is, whether, when a note of hand has been transferred by an endorsement in blank, tbe endorsee can be permitted, in an action against the endorser of the note, to shew, that it ivas agreed at the time the note was thus transferred, that the endorser should be liable al all events, without any demand of the note being made, of the maker, and without notice of its nou-pavnienl ?
When the payee of a note, by an endorsement in blank, transfers the note to another, he enters into a contract with the endorsee, most of the terms of which, after much litigation, have been settled in a long train of decisions and no longer admit of any doubt. 16 East 110, Dickinson vs. Bowes.—3 M. & S. 150—2 Camp. 498.—14 East 500, Sanderson vs. Bowes.—5 Taun, 30, Bowes vs. Howe.—12
Whatever doubt may si ill remain as to the true terms of this contract in other respects, that it is part of the contract, that a seasonable demand of payment shall be made of the maker, and due notice of the non-payment he given to the endorser, before the endorser is to be liable, is a principle of law too well settled to need any reference to the authorities, by which it is supported.
It is not to be doubted, that a note might beso endorsed, as to render the endorser liable without a demand or notice.— Nor is it to be questioned, that the endorser may, by a subsequent agreement, render the proof cf demand and notice unnecessary to the maintainance of an action against him.— Chitty on Bills 186 [171].
It is also well settled, that mercantile contrae is are to be construed conformably with the usage and custom of merchants, and that evidence of usage is admissible for the purpose of explaining and defining the terms of a contract, whore those terms are doubtful or ambiguous. 4 East 130, Robertson vs. French.—6 D. & E. 320, Cutter vs. Powell.—Yelverton 135, Pierson vs. Pounleys.—3 Esp. Rep. 121, Cochran vs. Retberg.—Peake's Rep, 43, Chaurand vs. Angerstein.—7 John. 385, Coit vs. The Commercial Insurance Company.—1 Caines’ Rep. 43.
But where the legal effect of an instrument, or of the terms used in it, has been settled, no evidence of usage can be admitted, 1 W. Bl. 298.—2 Burrows 1216, Edie vs. E. I. Company.—3 Campb. 427.—6 East 122.—2 B. Moore 233, Gibbon vs. Young.—1 Taun. 347.—Peake’s cases 177, 193.—1 Holt’s N. P. 95, Yeats vs. Pim.—1 Stark. 233.—2 Campb. 530.—2 Marshall 141.—7 Taun. 446.—11 Mass. Rep. 87, note.—3 Campb. 57.-10 Mass. Rep. 26.—2 John. 327.
The cases of Jones vs. Fales, (4 Mass. Rep. 245,) Weld vs. Gorham, (10 ditto 366,) The Lin. & Kenneb. Bank vs. Page, (9 ditto 155,) and Blanchard vs. Hilliard, (11 ditto 85,) have
It seems also to be well settled, that parol evidence cannot be received to vary or control the settled legal inn .:i-1 m a commercial instrument. Thus it was held in an action on a promissory note, that the defendant could not he permitted to set. up a verbal agreement, made by the plaintiff at the time the note was made, to take a renewal of the note instead of payment at maturity. Hoars et a. vs. Graham, et a. 3 Campb. 57.
So, where a note purports to be payable on demand, parol evidence cannot be admitted to shew that it was to be payable on a contingency. Rawson vs. Walker, 1 Stark. 361, It has also been adjudged, that when no time of payment, is expressed in a note, the law adjudges it to be payable immediately, and that parol evidence is not admissible to shew a different time of payment. 8 John. 189, Thompson vs. Ketcham.—4 Esp. Rep. 189, Holsten vs. Jumpson.—Holt 551, Free vs. Hawkins.—1 Moore 541.
Such being, in our opinion, the settled law of the land, we think that the evidence, which was rejected in this case, was properly rejected, and that there must be
Judgment on the verdict.