U.S. Supreme Court Adams v. Otterback, 56 U.S. 15 How. 539 539 (1853)
Adams v. Otterback
56 U.S. (15 How.) 539
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF COLUMBIA
Where a note was given in the District of Columbia on the 11th of March, payable sixty days after date, and notice of its nonpayment was given to the endorser on the 15th of May, being Monday, the notice was not in time.
Although evidence was given that since 1846, the bank which was the holder of the note, had changed the preexisting custom, and had held the paper until the fourth day of grace, giving notice to the endorser on Monday, when the note fell due on Sunday. This was not sufficient to establish an usage.
An usage, to be binding, must be general as to place, and not confined to a particular bank, and in order to be obligatory must have been acquiesced in and become notorious.
It was an action of assumpsit brought by Adams, the plaintiff in error, upon a promissory note drawn by Haw, Yellott & Company, in favor of Philip Otterback, the defendant in error, and discounted by the Bank of Washington. The proceeds of the discounted note were paid by the bank upon the check of Otterback. After the note had been protested for nonpayment and notice of protest had been given to the endorser, it was assigned to Adams, the plaintiff in error.
On the trial of the cause, the plaintiff gave in evidence the note, the handwriting of drawers and endorser being admitted, and proved that the note was discounted on the 11th of March, 1848, the day of its date, and the proceeds paid on defendant's check; that the note which was payable at sixty days was unpaid at maturity, and was delivered to George Sweeny, a notary, on Monday, the 15th day of May, 1848, after 3 o'clock, who on that day demanded payment, which was refused, and thereupon, on the same day, he delivered a notice for the endorser at his dwelling.
The plaintiff also gave in evidence by the teller and bookkeeper of the bank that after the decision of the case of Cookendorfer v. Preston, and about two years prior to the date of the note in controversy, the bank changed the custom which had previously prevailed in regard to the demand and protest of negotiable discounted notes held by the bank, and that in all cases of discount they had up to that time held the paper until the fourth day of grace; and by the change, if that fourth day of grace happened to fall on Sunday, it became the custom of the bank to retain them till Monday, and on that day deliver the same to the notary to demand payment and give notice. And on cross-examination it appeared that only four instances of practice under this custom were shown.
Upon this state of facts, the court instructed the jury that if they should
"find the whole evidence aforesaid to be true, yet the plaintiff has not thereby shown that he has used due diligence in demanding payment, and giving notice of the nonpayment of said note, and is not entitled to recover in this action."
To this instruction the plaintiff excepted, and the case was now to be argued upon it.
MR. JUSTICE McLEAN delivered the opinion of the Court.
This action was brought on a promissory note dated 11 March, 1848, given by George W. Yellett, Henry Haw, and William B. Scott, in the name of Haw, Yellett & Co., in which they promised to pay to Philip Otterback, Esquire, or order, sixty days after date, the sum of eight hundred dollars, for value received; which note, before it became due, was assigned to the plaintiff.
The general issue was pleaded, and the cause was tried by a jury.
The note was discounted by the Bank of Washington, the proceeds of which were drawn by the defendant.
The following facts appear in the bill of exceptions. The note was unpaid at maturity, and on Monday, the 15th of May, after three o'clock of that day, was delivered by the bank to George Sweeny, the notary employed by said bank to demand payment thereof, and for protest if not paid. The notary stated that he demanded payment at the United States Hotel, and was answered, "neither of the proprietors are within, and it cannot be paid." On the same day, notice was left at the dwelling of the endorser.
The witness further stated, that he had been teller of the bank since the year 1836, and that after the decision of the case of Cookendorfer v. Preston, by the supreme court, in 1846, the said bank changed the usage and custom which had theretofore prevailed therein, in regard to the demand and protest of negotiable paper held and discounted by it; and in all cases of discount they thereafter held the paper until the fourth day of grace; and if the said fourth day fell on Sunday, it was under the said change the custom of the bank to retain it until Monday, and on that day to deliver the same to the notary to
demand payment and give notice, and Sylvester B. Bowman, bookkeeper of the bank, states that since the decision of said case, the usage had been changed by the bank, as above stated.
No notice of such change had been given, so far as the witness knew, and it was further stated, that four cases had occurred in which the notes becoming due on Sunday, the notice was given on Monday. On the evidence, this Court instructed the jury that the plaintiff had not used due diligence in demanding payment and giving notice of nonpayment to the endorser -- to which the plaintiff excepted.
This Court, by several decisions, have sanctioned the usages of banks in this district, in making demand and giving notice of nonpayment, varying from the law merchant. Renner v. Bank of Columbia, 9 Wheat. 587-588; Mills v. Bank of the United States, 11 Wheat. 430, and in some instances where, in this respect, notes left in a bank for collection, have been placed on a different footing from notes discounted. Cookendorfer v. Preston, 4 How. 324.
But these usages had been of long standing and of general notoriety. Rights had grown up under them which could not be disregarded without injury to commercial transactions. In the case before us, the usage relied on, and under which notice to the endorser was given, had been adopted by the bank two years before the note in question was discounted, but it seems only four cases had occurred under it. No public notice was given at the time of its adoption, and no presumption can arise from the facts stated, that the endorser could have had notice of the usage.
It is said, if a bank may establish a usage, it may change it; and that there must be a beginning of acts under it. This may be admitted, but it does not follow that a usage is obligatory from the time of its adoption. To give it the force of law, it requires an acquiescence and a notoriety, from which an inference may be drawn that it is known to the public, and especially to those who do business with the bank. It is unnecessary to consider whether a usage adopted might acquire force from public notices generally circulated. No such notice was given in this case.
But to constitute a usage, it must apply to a place, rather than to a particular bank. It must be the rule of all the banks of the place, or it cannot, consistently, be called a usage. If every bank could establish its own usage, the confusion and uncertainty would greatly exceed any local convenience resulting from the arrangement.
In this country and in England, three days of grace are given by the general commercial law, and the day the note matures
is not one of them. In Hamburg, the day the bill falls due makes one of the days of grace. Notice must be given to the drawer or endorser on the day the dishonor takes place, or on the next day. If notice be given through the post office, it must be forwarded by the first mail after the demand of payment. If the note fall due on Sunday, under the general law, the demand of payment must be made on Saturday.
The usage is not proved in this case. Four instances in the course of two years are insufficient to establish a usage. Such a rule would, in effect, abolish the commercial law, in regard to demand and notice on promissory notes and bills of exchange. There is ground to doubt whether any deviation from the general law has not been productive of inconvenience.
No explanation is given why the demand of payment on the note was made at the United States Hotel, in this city. Such a demand would seem to be insufficient.
We are therefore of the opinion that there was no error in the instructions of the court to the jury; the judgment of the circuit court is therefore
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.