Second Nat. Bank of Baltimore v. Western Nat. Bank of Baltimore

• Decision Date: 25 March 1879
• Citation: 51 Md. 128
• Parties: THE SECOND NATIONAL BANK OF BALTIMORE v. THE WESTERN NATIONAL BANK OF BALTIMORE.
• Court: Maryland Court of Appeals

51 Md. 128

THE SECOND NATIONAL BANK OF BALTIMORE v. THE WESTERN NATIONAL BANK OF BALTIMORE.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exceptions.--At the trial the plaintiff offered the following prayers:

1. If the jury believe that the note offered in evidence had been discounted by, and was owned by the plaintiff on the day of its maturity, and that said note was on that date presented to the defendant, and payment thereof demanded, and that Nolting was paying teller of defendant at the time, and marked the face of said promissory note with a scratch or memorandum, with the initial of his name, then the jury are instructed that said memorandum or scratch, or certification meant that the note was good, and that the defendant had funds in hand to meet the same at that time, and the plaintiff is entitled to recover, notwithstanding the jury may believe that subsequently, on the same day, the said paying teller requested the plaintiff to cancel his said certification.

2. If the jury believe that the promissory note offered in evidence, had been discounted by, and was owned by plaintiff on the day of its maturity, and the said note was on that day presented to the defendant, and payment thereof demanded, and that Nolting was paying teller of defendant, and as such made a certification on the face of said note, they are instructed that the effect of said certification was, instead of the payment of money by the defendant to plaintiff, it became a charge by plaintiff against defendant, to be passed through the clearing house on the morning subsequent to the certification of said note; and if the jury further find that on the day following the said certification, the said promissory note was, according to said usage, duly passed through the said clearing house, and was charged against the defendant, and in favor of the plaintiff, on the books of said clearing house, and that said promissory note was through the proper officer of said clearing house, received by defendant, and the certification thereof skilfully erased and a demand of payment made by defendant of plaintiff, and by the paying teller of said plaintiff paid to the defendant through mistake, then said plaintiff is not precluded from recovering in this action, notwithstanding the said defendant may have asked the plaintiff on the day of the maturity of the said note, and after the certification thereof, to erase the said certification.

3. If the jury from the evidence believe that the promissory note offered in evidence had been discounted by, and was owned by the plaintiff on the day of its maturity, and that on that day said note was presented for payment to the defendant, and that Nolting, as paying teller of defendant, certified said note, and on the same day subsequent to the certification thereof, said Nolting requested the plaintiff to erase the certification, and that said plaintiff declined to make said erasure; and if the jury shall further believe, that in consequence of said certification, the plaintiff has been precluded from obtaining the amount due upon said promissory note, by the refusal of the endorsers thereof to pay the same, or otherwise has suffered loss from the effect of said certification, then plaintiff is not precluded from recovering the amount of its said loss, growing out of said certification in this action; provided, it does not exceed the amount of the promissory note offered in evidence, and interest thereon from its maturity.

And the defendant offered the following prayers:

1. If the jury shall find from the evidence, that when the teller of the defendant certified the note given in evidence to be good, he had been previously requested by the drawers not so to certify it, and did so, overlooking at the time the said request; and that at a later hour in the day discovering his said error, he promptly sent the notice and letter of the drawers given in evidence to the plaintiff, requesting said certification to be erased, and that said notice reached the plaintiff before the return of its runner who held the note so certified; and on the receipt of said notice the plaintiff, by its president, said all right, and at once sent for the endorsers on said note, and informed them of the said certification and of the request for its erasure, and demanded of them as endorsers that they should waive notice of protest, and that said endorsers did accordingly waive protest of said note, then the plaintiff is not entitled to recover against the defendant by reason of its said certification; it appearing that the withdrawal thereof was made in time to enable the plaintiff to hold the endorsers on said note by proper notice, and that the plaintiff did in fact take steps for charging said endorsers, by procuring their waiver of protest on said note.

The defendant filed the following exception to granting the third prayer of plaintiff:

"The defendant excepts to the plaintiff's third prayer, upon the ground that the plaintiff has offered no evidence in the case, to show that it was precluded from obtaining the amount due upon the promissory note by the refusal of the endorsers thereof to pay the same, or otherwise has suffered loss from the effect of said certification, the evidence in the case being on the contrary that notice of withdrawal of the certification was given in ample time to enable the plaintiff to charge the endorsers on said note, and that the plaintiff did in fact take steps to charge them, by requiring them to waive protest, and that this was all done before three o'clock of the day on which the note matured."

The Court (GAREY, J.,) rejected the plaintiff's prayers, and granted the defendant's prayer.

The plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, J.

William A. Stewart, for the appellant.

The appellant insists, that the Court below was in error in withholding the evidence offered to show the usage among the banks of Baltimore city in regard to the certification of a promissory note by the paying teller of a bank, and in regard to the power of a bank to erase or withdraw a certification when once made by the teller of the bank at which the note was made payable, from the jury, whatever it may have decided its effect to be upon prayers properly prepared, after the evidence should have been given; the whole system of certification has grown up within a few years, and is still in process of development; and it is not for the Court to say that because one case has been decided in a different jurisdiction, under a custom there prevailing, that, therefore, evidence may not be introduced to show a different usage or custom in Maryland. Burroughs vs. Langley, 10 Md., 248; Gunther, &c. vs. Atwell, 19 Md., 157; Bank of Columbia vs. Fitzhugh, 1 H. & G., 239; Bank of Columbia vs. Magruder, 6 H. & J., 172; Raborg vs. Bank of Columbia, 1 H. & G., 231; Bell vs. Hagerstown Bank, 7 Gill, 227; Merchants' Mut. Ins. Co. vs. Wilson, 2 Md., 217; The Schooner Reeside, &c., Claimants, 2 Sumner, 567; Snowden vs. Warder, 3 Rawle, 101.

The Court, having excluded the evidence of usage in the city of Baltimore, the appellant's prayers necessarily fell with the want of proper evidence; but when the appellant shall have been permitted to establish the usage, the justice of its prayers will be manifest. Willits vs. Ph nix Bank, 2 Duer, 121; Meads vs. Merchants' Bank of Albany, 25 N. Y., 143; Farmers and Mechanics' Bank of Kent Co. vs. Butchers and Drovers' Bank, 14 N. Y., 623; Same Case, 16 N. Y., 125.

The Court was wrong in withdrawing from the jury the facts set forth in plaintiff's third prayer, and assuming, that the withdrawal of certification was made in time to enable the...