Pierce v. Whitney

| Me. | Jul 15, 1848

Shepley, J.

The promissory note, on which this action was commenced, appears to have been made in the ordinary course of business. It does not appear to have been made or indorsed with any knowledge or expectation, that it would be discounted or deposited in a bank for collection. Whatever knowledge persons may have of the usages of banks, they can scarcely be expected to make all their negotiable paper with reference to such usages, especially when their residence is established at a great distance from them. In the case of Maine Bank v. Smith, 18 Maine, 99, the notes were made to be discounted at the bank as renewals, as they are called, of former notes discounted.

It is unnecessary to consider, what might have been the effect of such an usage of banks, as was attempted to be proved in this case, upon the rights of parties to negotiable paper not made or indorsed with any knowledge or expectation, that it was to be discounted or deposited in a bank, if the proof had shown, that they were acquainted with the usage; for the jury have found, that no such usage, as would vary the legal rights of these parties, was proved to have existed at that time in the bank, in which this note was deposited.

The first cause of complaint presented by the bill of exceptions is, that the counsel for the plaintiff was not permitted to make an argument to the jury, to show “ that the note by the understanding and agreement of the parties, or at least on the part of White, was to be paid in Boston.” In doing so the presiding Judge acted correctly. It had already been decided, that the note was not made payable in the city of Boston, because it appeared to have been made and dated there. 22 Maine, 113. Parol evidence cannot be received or have the effect to show, that a note not made payable at any particular place was in fact agreed to be payable at a particular place. A written memorandum of such a place, at the foot or on the margin of the note, has been adjudged to be insufficient. The place of payment must be stated in the body of the note to make it payable at that place. Story on Notes, <§> 49, and notes 1 and 2.

The second cause of complaint is in substance, that the Court refused to admit proof of a letter addressed by the maker to the holder of the note, before it became payable, informing him, that he should not be able to pay it at maturity and desiring an extension of the time of payment, to have the effect to excuse the holder from making a presentment of the note at the maker’s place of residence and business. The maker and holder, had they agreed to do so, could not change the contract by a parol agreement, so as to affect the rights and liability of an indorser or to excuse themselves from performing the condition required by the law of the contract, unless the indorser had consented to it. Story on Notes, <§> 291.

The remaining cause of complaint appears to be, that full effect was not allowed to the proof of usage generally of the banks in Boston upon the rights of these parties, although that usage was not found to have any existence in the bank in which this note was deposited. To have any effect upon the contract, if it be not so made with reference to the usage, that it becomes a part of it, the usage must be applied to it. As well might it be contended, that a presentment made by an individual not in conformity to law, would be good, because there was in that place a usage of banks, by which it might have been good, if made by them, as that it would be by a corporation having no usage of its own differing from the law, because other corporations had such a usage. Camden v. Doremus, 3 Howard, 515.

Exceptions overruled.