Citizens' Bank of Baltimore v. Grafflin

• Decision Date: 15 December 1869
• Citation: 31 Md. 507
• Parties: THE CITIZENS BANK OF BALTIMORE v. JACOB GRAFFLIN and George W. Grafflin.
• Court: Maryland Court of Appeals

31 Md. 507

THE CITIZENS BANK OF BALTIMORE v. JACOB GRAFFLIN and George W. Grafflin.

Court of Appeals of Maryland

December 15, 1869

Appeal from the Superior Court of Baltimore City.

At the trial below the plaintiffs offered the following prayer:

If the jury find from the evidence that the draft in controversy was discounted by the defendant for the plaintiffs as partners trading as J. W. Grafflin & Son, on the 5th of June, 1867 and was forwarded by the defendant to be presented to the drawee for acceptance, and was accordingly so presented on the 22nd of July, 1867, to the said drawee, who refused to accept the same, and that said draft was protested for non-acceptance ond said 22nd day of July, then the plaintiffs are entitled to recover a verdict against the defendant for $2,542.90, with interest in the discretion of the jury from the 4th of September, 1867: provided the jury shall find that on the 3d of September, 1867, the plaintiffs at the request of the defendant and on being notified that said draft had been protested for non-payment, deposited with the defendant the sum of $2,670.77 to make good the said draft and on the 4th of September, 1867, paid the defendant therefor the sum of $2,542.90 at the defendant's request by check on the defendant for that amount. Provided the jury shall further find that at the time of making said deposit and payment, the plaintiffs were in fact ignorant that said draft had been refused acceptance, and had been protested for non-acceptance on the 22nd of July aforesaid, and made the said deposit and payment by reason of such ignorance, and immediately after discovering the facts of which they were thus ignorant, reclaimed from the said bank the sum so paid.

The defendant then offered the following prayers:

1st. That under the pleadings and evidence in the cause the plaintiffs are not entitled to recover, because there is no evidence of any well-established, uniform and notorious usage among the banks of Baltimore and those dealing with them in reference to the sending forward for acceptance, drafts discounted by them, such as that offered in evidence by the plaintiffs, and there is no evidence of the want of due notice to the plaintiffs of the protest of the said draft for non-acceptance.

2nd. That the jury are not to consider any of the evidence in the cause upon the subject of usage, the same having been taken subject to exception, and being inadmissible as not showing and not tending to show the existence of a general, uniform, certain and notorious usage among the banks of the City of Baltimore, and those dealing with them, in the discounting and forwarding for acceptance of drafts, such as that decided, that the opinion was merly the reasoning of the Judge offered in evidence by the plaintiffs.

3rd. That there is no evidence in the cause that due notice of the protest for non-acceptance of the draft offered in evidence, was not given to the plaintiffs.

4th. That if the jury find from the evidence that the defendant sent to the plaintiffs the draft and protests for nonacceptance and non-payment, offered in evidence, and requested the plaintiffs to send the defendant a check for the amount of said draft and costs of protest, and that the plaintiffs ascertained the amount of the check subsequently signed by them, if they shall find such subsequent signing from a memorandum in figures, written upon the protest for non-acceptance, and if they shall find that in said memorandum there was a distinct charge for the protest for non-acceptance, then said plaintiffs had ample means and full opportunity to ascertain before giving said check, the time when said draft had been presented to the drawee for acceptance, and their verdict must be for the defendant; no matter what they may find in reference to any usage of banks in the City of Baltimore, in reference to such drafts, and although they should find that due notice of the protest of said draft for non-acceptance, was not given to the plaintiffs.

5th. That if the jury shall find the facts stated in the defendant's fourth prayer, as to the sending by defendant to plaintiffs of said draft and protests for non-acceptance and non-payment, and the request of the defendant that the plaintiffs should send a check for the amount of said draft and costs of protests, and the ascertaining of the amount of said check as stated in said prayer, before the signing and delivery of said check, and shall find that the plaintiffs had ample means and opportunity to ascertain before giving said check, the time when said draft had been presented to the drawee for acceptance, then their verdict must be for the defendant; no matter what they may find in relation to any usage of banks in the City of Baltimore, and although they should find that due notice of the protest of said draft for non-acceptance was not given to the plaintiffs.

The court (Dobbin, J.,) refused to grant the prayer of the plaintiffs, as also the prayers of the defendant, and gave the instruction following as to usage, in lieu of the defendant's first and second prayers:

That there is no evidence legally sufficient to establish a general usage among the banks of the City of Baltimore, nor a particular usage as to the Citizens' National Bank alone in relation to the presentation for acceptance, at any time before maturity, of time drafts, discounted by them, of such general, uniform, certain and notorious character as to justify the jury in inferring that such usage entered into the contract between the plaintiffs and the defendant, for the discounting of the draft offered in evidence.

And the court gave the following additional instruction to the jury:

If the jury find from the evidence that the draft in controversy was discounted by the defendant for the plaintiffs, as partners, trading as J. W. Grafflin & Son, on the 5th of June, 1867, and was forwarded by the defendant to be presented to the drawee for acceptance, and was presented on the 22nd of July, 1867, to the said drawee, who refused to accept the same, and that said draft was protested for non-acceptance on said 22nd of July, of which non-acceptance and protest for non-acceptance the plaintiffs had no notice; and if the jury shall further find that the said draft, not having been paid at maturity, was returned to the said defendant, and that the said defendant, in anticipation of the return of said draft, gave notice to the said plaintiffs that the said draft had been protested for non-payment, and requested them to deposit funds with the said defendant to meet the said draft on its return, which the said plaintiffs did by depositing with the said defendant $2,670.77, and on the 5th of September, 1867, paid the defendant for said draft and expenses, the sum of $2,542.90, and that at the time of making the said deposit and payment, the said plaintiffs were in fact ignorant that said draft had been refused acceptance and had been protested for nonacceptance on the 22nd of July aforesaid, and made the said deposit and payment by reason of such ignorance, and immediately after discovering the facts of which they were thus ignorant, reclaimed from the said defendant the sum so paid; then the said plaintiffs are entitled to recover a verdict against the defendant for $2,542.90, with interest in the discretion of the jury from the 5th of September, 1867.

And thereupon the plaintiffs with leave of the court, after the foregoing prayers had been argued and the jury instructed thereon, offered a second prayer as follows:

If the jury shall find from the evidence that the plaintiffs have for some years past been constant customers of the defendant, and as such have from time to time and very frequently, during their whole course of dealings with the defendant, had discounted by the defendant time drafts of the character of the draft in controversy in this case, and that in all such dealings the defendant has uniformly and habitually sent forward the said drafts for acceptance without delay, then the plaintiffs were justified in expecting from the said course of dealings that the draft in question would so likewise be sent forward, and in relying upon the defendant so to send it forward accordingly.

Which the court refused for the reasons following:

I refuse the instruction asked in this prayer upon the ground that the defendant not being bound by the general principles of law to send the draft forward for acceptance before the maturity thereof, and there being no sufficient evidence of a general custom of the banks of the City of Baltimore, nor of a particular custom of the Citizens' National Bank to change the operation of the said general principles, and there being no evidence that the dealing of the plaintiffs with the defendant on the subject of drafts of this character had been carried on under any understanding or agreement that the bank would be obliged to send forward such draft as a matter of duty, and no evidence of any transaction between them in which such liability had arisen, and been admitted, the said general rule of law remains unchanged in its application to this case.

To the refusal of its prayers, and to the last instruction given by the court, the defendant excepted; and the verdict and judgment being for the plaintiffs it appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ROBINSON, JJ.

Robert D. Morrison and I. Nevitt Steele, for the appellant.

No evidence of custom or usage is admissible to change or vary a well-established rule of law. Bank v. Carter, 20 N.H. 246; Wheeler v. Newbold, 5 Duer, 29; Bowen v. Newell, 2 Duer, 584; Dewes v. Lockhart, 1 Texas, 535; Hone v. Ins. Co. 1 Sandf. (S. C.) 137; Perkins v. Bank, 21 Pick. 483; Allegro v. Md Ins. Co. 2 G. & J. 136; Foley...