Moore v. Waitt

13 N.H. 415

• Court: Superior Court of New Hampshire
• Decided: July 15, 1843
• Status: Published

Opinion

Parker, C. J.

There is no principle upon which the plaintiff can sustain this action. The defendant drew the bill in question, and it was duly accepted by the persons upon whom it was drawn. By this transaction the draAvees became the debtors of the holder, and the defendant undertook, in case they failed to make payment upon a due demand made upon them, that he would pay the amount. This was, substantially, the liability which rested upon him, after the acceptance of the bill.

There is no pretence that the bill was presented to the acceptors for payment when it became due, and it is admitted that by the general rules of law the defendant cannot be charged. The plaintiff seeks to bring his case within some exception to the general rule.

It appears that the bill was left in the Framingham bank for collection; and the plaintiff relies upon a usage of that bank to notify the acceptor and drawer through the mail, on the last day of grace, as an excuse for a neglect to present the bill to the acceptors for payment. But we find nothing in the case to charge the defendant upon any usages of the Framingham bank. The payee, when he received the bill, told the defendant that he should get it discounted at that bank. This he did not do, for a sufficient reason, but instead thereof left it in the bank for collection. The utmost effect that could be given to this would be as a notice to the defendant that the bill would be in that bank at its maturity. Such notice would in no way extend or vary his liability. The bill was not drawn payable at that bank; nor would the notice, when the payee received it, that it would be left there, have any operation to bind the acceptors. or the defendant, to seek it at that place.

Nor could the notice to the acceptors, according to the custom of the bank, when the bill became due, impose any greater duty upon them than existed when they first accepted the bill, or charge the defendant for their neglect to make payment at that place. It does not appear that the acceptors had any notice that the bill was there, until after the last day of grace. The defendant had no agency in procuring the bill to be left there. Nor does it appear that he had any knowledge of the usages of the bank. If he had had such knowledge, that fact would not have operated as a waiver of his right to require that a demand should be made upon the acceptors, according to the general rules of the law, before payment was sought of him.

If the defendant, after drawing the bill, had negotiated it to the bank, or if he had procured it to be left there for collection, there might have been some ground for binding him by the usages of those in whose hands he had placed it. 1 N. H. Rep. 80, Tredick vs. Wendell; 18 Maine R. 99, Maine Bank vs. Smith; 17 Mass. R. 449, Whitwell vs. Johnson; 23 Pick. R. 305, Grand Bank vs. Blanchard; 1 Peters’ S. C. Rep. 25, The Bank of Washington vs. Triplett.

The fact that the custom of all the banks in the vicinity where the parties lived, was, in this matter, like the custom of the Framingham bank, adds no strength to the plaintiff’s case. If the customs and usages of these institutions may bind those who deal with them, they can go no farther than that, when they are not in accordance with well settled principles of law. It is not in their power to change those principles, and thereby to impose additional duties and liabilities upon those who do not deal with them.

New trial granted.