20 N.H. 246 | Superior Court of New Hampshire | 1850
It is unnecessary to discuss the power of hanks or other business companies, to establish usages at variance with the law which governs the rest of the community, or the question how far those who deal with them are to be assumed to know and to be bound by such usages in the present case.
It seems by no means expedient for courts to give countenance to such usages, inasmuch as they are calculated to destroy the uniformity of the law in the different parts of the State, and as our largest towns are but inconsiderable places of business, to allow a different law in every village; and in the language of C. J. Richardson, in Leavitt v. Simes, 3 N. H. 17, it deserves serious consideration whether the admission of testimony to show the usage and his assent to it, is not to admit parol evidence to vary the terms of a written contract.
If the usage set up in the present case, that indorsers of notes offered for discount should be required to waive demand and notice, is assumed to be valid, and to be binding upon all who had occasion to transact business with the plaintiffs; yet it was a rule, established by the plaintiffs for their own convenience and security, and which they were at liberty to waive, and in this instance the usage was neglected, and what the bank was accustomed to require to be done, was not in fact done. Demand and notice were not in fact waived.
The utmost effect which could be claimed for the usage set up in this case would be to constitute an agreement on the part of the defendant that he would waive the demand and notice which the law ordinarily requires, in order to his being bound as indorser — a parol agreement made at the time of the indorsement. Now the question whether a parol agreement to waive demand and notice made at the time of indorsement, can be given in evidence,
Allusion is made in the argument to some supposed usage relating to the demand on the maker, or some previous notice as a substitute for a demand, but none such is stated, nor any facts from which any could be inferred.
The liability of the defendant, then, depends, not on the usages of the bank, but upon the general rules of the common law; and upon the case, as stated, it does not appear that there was any demand upon the maker of the note on the third day of grace, which is held to be necessary, in the case of Leavitt v. Simes, before cited; Dennet v. Walker, 7 N. H. 199. The note became due August 1-4. There is no evidence of any demand of the maker on the 4th, nor of any notice to the maker that it would become due on that day, if that were of any importance. The statement goes no further than that Lowd told Carter that he had, within a few days, given notice to Wing of a note becoming due from him to the Piscataqua Exchange Bank. Such a statement was not evidence of anything; but if it were it proved nothing as to the time at which the maker was called upon to pay. There is no evidence that proper notice was given to the indorser that such demand had been made, and that the note had not been paid by him, and the holder would look to the indorser for payment. The indorser is consequently discharged from liability, and there must be judgment for the defendant.