Duvall v. President of the Farmers Bank , 7 G. & J. 44 ( 1835 )

Archer, Judge

delivered the opinion of the court.

We shall proceed to the examination of the agreement between Duvall, and the Farmers Bank of Maryland, in the first place, because we consider that its true construction, will dispose of the question material to be decided on the first and second bill of exceptions.

That agreement has reference to the two notes which furnish the cause of action in this case. What was the condition of these notes, at the time of the agreement ? One of the notes was due, the other had not arrived at maturity. The agreement refers to both notes, and must be considered as applying to both notes in the condition they then were.

As to the note which was due, the agreement not to protest, implies that there had been a demand, or why would there be an agreement not to protest? Without there had been a demand, there could be no protest. When applied to the note, not then due, the whole agreement implied that there existed an obligation to demand it, or why would there be an agreement to dispense with the protest. The fact that there would be a protest, but for the agreement, necessarily presupposes the duty and obligation to make the demand without which there would be no protest.

But if notwithstanding the agreement, the obligation continued to make a demand on the note, then not at maturity, why are the stipulations entered into that it shall not be protested or renewed. Such stipulations by their terms assume, that the notes would not be paid when due, and that it was so perfectly understood; if this he so, and we think it is, the inference of a dispensation with the demand appears to be irresistible. They knew the notes would not be paid, and the endorser was desirous of avoiding the effects of a protest on his credit; he therefore stipulates against it, and expressly waives notice, of what it was perfectly understood was to take place, non-payment. The very agreement to dispense with notice of non-payment, is confirmatory of this construction of the agreement. Such an agreement, presupposes there would be no payment, and assumes responsibility without notice.

As to the first note, then, the agreement furnished evidence of a demand, and was a dispensation of notice of non-payment.

As to the other note, that is the note not then due, this agreement dispensed with the demand which otherwise it would have been the duty of the party to make. And the defendant assumed the responsibility without demand, and consequently without notice. It is then our opinion, that the clear inference from, and construction of this agreement is, that each of these notes was to layover; -that Grafton Duvall in the one case, dispensed with notice of non-payment — and in the other, dispensed with both demand and notice; and assumed responsibility without that, which under other circumstances would have been necessary to create a legal liability on his part. The agreement manifestly by its very terms assumes, that these notes were to go through all the formalities of demand and notice, to render the endorser responsible, and it was to avoid such results, that at Duvall’s solicitation the dispensation is made. This being our construction of the agreement of the 17th of July 1827, it does not become necessary to express any opinion on the legal propriety of putting the cause to the jury, upon the hypothesis mentioned in the fifth and sixth prayers, as the jury have found in conformity with the true construction of the agreement, and as the defendant is in no manner prejudiced by the opinions of the court, which in the one case, directed the jury that the plaintiff was entitled to recover, as if there had been evidence of a demand, and in the other, that the plaintiff was not bound to give other evidence, than that which he had adduced of a demand.

By the fourth bill of exceptions, the court are made peremptorily to instruct the jury, that the plaintiff was entitled to recover the sum of $922 43. Now, although we entirely concur with the learned judge, if the execution of the notes and endorsements, and the agreement of 17th July are proved to the satisfaction of the jury, that such would be the result; yet the direction is not put upon sueh ground, and the opinion has excluded from the consideration of the jury, the very basis of the plaintiffs right to recover any thing.

The court correctly refused to instruct the jury that the plaintiff was not entitled to recover, for the reasons urged in the fifth bill of exceptions; nor do we feel ourselves called upon to determine the. questions which were discussed upon this bill of exceptions. According to the facts and admissions of the parties in this bill of exception, the finding of an intention to take more than the legal interest was indispensable. The calculations or deductions of interest according to Rowlett’s tables, were in all cases legalized by the act of 1826, ch. 90; and the admission is, that the bank, “ has always been in the practice of changing interest or discount, agreeably to the calculation in Rowlett’s tables.” Now, if it be true, that the exception does shew that greater interest or discount was in fact taken than was indicated by these tables, it would not necessarily follow, that it was usury. For that must depend on intention, and if designing to follow calculations which were lawful, and the admission of the uniform practice, would seem to lead to such a deduction, they had by mistake or error, and not by intention deviated from the rules prescribed by Rowlett, a case would be presented from which usury could not be deduced.

THE JUDGMENT OF THE COURT IS REVERSED ON THE FOURTH EXCEPTION, AND A PROCEDENDO AWARDED.