Bank of Statesville v. Pinkers

• Decision Date: 30 June 1880
• Citation: 83 N.C. 377
• Court: North Carolina Supreme Court
• Parties: BANK OF STATESVILLE v. L. PINKERS & CO.

83 N.C. 377

BANK OF STATESVILLE

v.L. PINKERS & CO.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL

ACTION tried at Spring Term, 1880, of IREDELL Superior Court, before Gilmer, J.

Judgment for plaintiff, appeal by defendants.

Messrs. D. M. Furches, J. M. Clement, G. N. Folk and J. M. McCorkle, for plaintiff .

Messrs. Reade, Busbee and Busbee, for defendants .

SMITH, C. J.

The action is brought against the defendants, the drawers of a bill which is in these words:

“STATESVILLE, N. C., Nov. 17, 1875.

Sixty days after date pay to the order of ourselves seven hundred and seventy-six dollars, value received and charge the same to account of

+------------------------------------+
                ¦To Leederman Bros.,¦L. PINKERS & Co.¦
                +------------------------------------+
                

New York. $776.”

On the face of the draft was written, “Acceptance waived. L. Pinkers & Co.” The draft was made and delivered to the plaintiff for an antecedent indebtedness and upon no other consideration than the specified forbearance.

The defence, set up by the defendants, in opposition to the recovery, was the plaintiff's failure to present the draft at its maturity to the drawees for payment, and the discharge in consequence of such neglect. Two issues were prepared and submitted. the substance of the finding of the jury on which is that the draft was drawn and accepted with an understanding and agreement between the plaintiff and the defendants, that the draft should be held and not presented for payment, and that such presentation for payment was waived.

1. During the trial before the jury the plaintiff put to one of its witnesses the following question: “Was there a general custom with the bank to receive papers for discount without any purpose or practice on its part to present them for payment? and if so, did the defendants know of it at the time they delivered the draft?” The question and the affirmative response thereto were, on objection from the defendants, admitted. The objection to the reception of proof of the usage of the bank, and the defendants' knowledge of that usage is not put as it should be, upon any specific ground, and we only know upon what it rests from the argument. Its admissibility is contested here as being a leading question, and the testimony itself as incompetent to control or vary a well settled rule of mercantile law in regard to negotiable paper.

The objection to the form of the question as leading, is disposed of in the recent case of ................. .................. recognizing the rule laid down by GREENLEAF that “when and under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court and not a matter which can be assigned for error.” 1 Greenl. Ev., § 435; Moody v. Rowell, 17 Peck., 498, where the subject is carefully considered.

The second ground is equally untenable. Proof of usage among banks in a particular locality has been allowed to modify the days of grace, as prescribed by the law-merchant, and to affect those dealing without, as was decided in Renner v. Bank, 9 Wheat., 581, which, with a series of cases in the appended note, may be found in Red. & Big. Lead. Cases on Bills of Exchange, 297.

So in Vaughan v. R. R. Co., 63 N. C., 11, the defendant was allowed to prove “a custom of the company at the Henderson depot to weigh, mark and book bales of cotton immediately after they were received for transportation,” upon a question of the reception of the plaintiff's goods for transportation and to qualify its liability therefor.

But the usage here is brought home to the defendants and enters into their contract with the plaintiff. Undoubtedly the drawer and endorser of a bill may by express agreement dispense with conditions essential under the general law to charge him, and may in place of a contingent, assume a direct and absolute obligation as the defendants are alleged to have done in ...