Majority
p. 174The Merchants’ Bank of the City of New-York vs. Woodruff.
Headnote
An instrument in the form of a bill of exchange, drawn upon and accepted by the cashier of a bank, and payable to order, in the city of New-York, at a specified period after date, is entitled to days of grace; and evidence of a local usage cannot be received for the purpose of varying its legal effect in this particular.On' error from the supreme court, where The Merchants’ Bank of the City of New-York were sued for the negligence of their notary in not duly presenting and protesting a bill of exchange sent them for collection by Woodruff, the plaintiff below, whereby he lost his remedy against the drawer, acceptor and endorser. The bill was in these words :
Detroit, Nov. 15th, 1838.
Sixty days after date, pay to the order of Daniel Green, Esq. fifteen hundred dollars, at the Phoenix Bank in the city of New-York, value reed., which place to ac.
Your Ob. Sert.
To.Wm. H. Griswold, L. Godard,
Cashier of Oakland County Bank, Detroit,
Mich.”
The cause was tried twice in the court below. On both trials it appeared, among other things, that after the bill was accepted by Griswold and endorsed by the payee to Woodruff, he sent it to the defendants below for collection; and that their notary did not present it for payment on the seventeenth of January, 1839, the third day of grace, but did so on the fourteenth, im
p. 175said the evidence offered at the trial was improperly excluded. The object of it was to enable the jury to ascertain whether the parties to this instrument contracted in reference to the general law, or intended that the local usage should be the rule for determining the nature and extent of their obligation. If they contracted in reference to the usage, the instrument ought to be treated precisely as though it contained an express stipulation that days of grace should not be allowed; and this being a matter which the parties had a right to regulate by stipulation, the supreme court érred in holding that the usage was invalid. (Chitty On Bills, 407, Am. ed. of 1839; Byles On Bills, 121; Story On Bills, 385, § 333; Cowen & Hill’s Notes to Phill. Ev. 1409 to 1420, 1455, 6; Bank of Utica v. Smith, 18 Johns. Rep. 230 ; Bank of Columbia v. Fitzhugh, 1 Harr. & Gill, 239; Jackson v. The Union Bank of Maryland, 6 Harr. & Johns. 146; Allegre v. The Maryland Ins. Co., id. 408; Renner v. The Bank of Columbia, 9 Wheat. 581 ; Mills v. The Bank of the United States, 11 id. 431; Bank of Washington v. Triplett,
mediately forwarding notice of non-payment. The first trial resulted in a verdict for the defendants below, which was afterwards set aside, and a new trial ordered. For the opinion of the supreme court delivered on that occasion, see 25 Wend. 674 , 5. On the second trial, which took place before Dayton, C. Judge, at the Niagara circuit in March, 1842, the defendants below offered to prove, among other things, that, by the usage and custom of banks, bankers and merchants, in the city of New-York, the instrument in question was a mere bank check, payable without days of grace, and that consequently there had been no negligence on the part of the notary. The. circuit judge excluded the evidence, and a verdict was rendered in favor of Woodruff. The defendants below afterwards moved for a new trial on a bill.of exceptions, but the supreme court denied the motion, for the reasons given in their former opinion, and Woodruff obtained judgment; whereupon error was brought to this court.
B. W. Bonney, for the plaintiffs in error,
p. 1761 Peters' Rep. 25 ; Lincoln and Kennebeck Bank v. Page, 9 Mass. Rep. 155 ; Halsey v. Brown, 3 Day's Rep. 346; Cutter v. Powell, 6 Durn. East, 320; Robson v. Bennett, 2 Taunt. 388; Snowden v. Warder, 3 Rawle's Rep. 101; Gibson v. Culver, 17 Wend. 305 ; Middleton v. Hayward, 2 Nptt & M'Cord, 9; .May v. Babcock, 4 Hamm. Rep. 334; Wood v. Corl, 4 Metcalf's Rep. 203.) The evidence excluded at the trial was not offered for the purpose of explaining an ambiguity, but to vary the clear import and legal effect of a written instrument; and the circuit judge therefore decided rightly. (La Farge v. Rickett, 5 Wend. 187 , 190 ; Thompson v. Ketcham, 8 Johns. Rep. 190 , 192; Creery v. Holly, 14 Wend. 26 , 30.) A local usage in the city of New-Yorlc ought not to be allowed to control the settled and acknowledged law of the state in respect to commercial paper; for the rule defining the rights and obligations of the parties to such paper, should be known, uniform and stable. (Edic v. The East India Company, 2 Burr. 1216, 1222, 1224; Frith v. Barker, 2 Johns. R. 327; Rankin v. The American Ins. Co., 1 Hall’s Rep. 619, 632; Homer, v. Dorr, 10 Mass. Rep. 26 ; The Schooner Reeside, 2 Sumn. Rep. 567 ; Brown v. Jackson, 2 Wash. C. C. Rep. 24 ; Winthrop v. The Union Ins. Co., id. 7; Eager v. The Atlas Ins. Co., 14 Pick. 144 ; Rogers v. The Mechanics' Fire Ins. Co., 1 Story's Rep. 603, 4 Law Reporter, 297, S. C.; Chitty On Contr. 82, ed. of 1839 : Little v. The Phoenix Bank, 2 Hill, 429 , 430.)
N. Hill Jun., contra.
delivered an oral opinion concurring in the view which the court below had taken of the question presented, ( 25 Wend. 674 , 5 ;) and
On the question being put, “ Shall this judgment be reversed?” all the members of the court present who heard the argument voted for affirmance.
Judgment affirmed.[1]
(a) (a) «) See Matter of Ephraim Brown, (6 Law Reporter, 508.)
Cases cited
- Renner v. President of the Bank of Columbia 9 Wheat. 581 p. 175
- Gibson v. Culver 17 Wend. 305 p. 176
- La Farge v. Rickert 5 Wend. 187 at 190 p. 176
- Creery v. Holly 14 Wend. 26 at 30 p. 176