Ames v. York National Bank

103 Mass. 326

Opinion

Chapman, C. J.

The fair construction of the plaintiffs’ order is, that it requested the defendants to send them their own check for the exact amount that would be due to them. The defendants did not comply with this order; and we cannot =say that the variance from it was immaterial. The defendants’ check, payable to the plaintiffs, would have been less likely to be stolen than a letter containing bills; and, if lost, it could have been duplicated without depending upon the will of a third person.

If the defendants could prove the custom alleged, it would amount to a custom to hold that a material variance from the terms of an order should be regarded as equivalent to a compliance with its terms, which would not be a valid custom.

Judgment for the plaintiffs affirmed.