Bank of America v. Woodworth , 18 Johns. 315 ( 1820 )

Spehcer, Ch. J.

delivered the opinion of the Court (After stating the facts.) The question made upon the argument is, whether, under these facts, a demand of payment at the bank of America was sufficient ? On the part of the defendant, it was contended, that a personal demand of the maker at his residence, or place of business in Albany, was necessary; that it was not competent to the maker, by any act of his, to alter the place of payment; and there having been no personal demand, nor any demand at the residence or place of business of the maker in Albany, the endorser was discharged. When the note was endorsed by the defendant, it was not payable at any place. Had not the memorandum been made, and had the residence of the maker continued to be in Albany, and if he himself had been in Albany on the day the note fell due, undoubtedly, the demand must have been made of the maker, either personally, or at his place of business in Albany, to charge the endorser. If, however, the maker had changed his residence before the note fell due, or if he had been met with in Nezo-York. or elsewhere, when the note fell due, a personal demand upon him would have been regular, and sufficient to fix the endorsers. It cannot be said, then, that it was any part of the contract, as between the immediate parties to the note, that demand should be made of the maker in Albany, or that the endorsers relied upon the necessity of such a demand, or that the note was endorsed in the confidence or expectation that a demand of payment was to be made only in Albany. In Anderson v. Drake, (14 Johns. Rep. 114.) it was decided, that a bill or note is not payable where it is dated, but that where no place is appointed in the note itself, it must be demanded at the known permanent residence of the maker. In that case, when the note was given, the maker resided in Jfem-York, and before it fell due he removed to Kingston, which fact being known to the holder when the note fell due, we held, that payment ought to have been demanded of him at Kingston. In Wolcott v. Van Santvoord, (17 Johns. Rep. 248.) it was decided, that the time and place of payment formed no essential part of the contract, as between the immediate parties to a note or bill, although, as regards the endorser, and to charge him, it is necessary to use due diligence, by demanding payment of the maker or acceptor, on the day the note or bill falls due, and giving notice ón that, or the subsequent day, to the endorser. The note being silent as to the place of payment, is it not competent to the maker to designate a place where payment shall be made ? And if so, will not a demand at such place be sufficient, and dispense, with the necessity of a personal demand ?

The case of Saunderson and others v. Judge, (2. H. Bl. 509.) seems to me to be very much in point on this part of the case. The action was on a note by the last endorser against the second endorser, and one of the questions was, whether a regular demand of payment had been made upon Sharp, the maker of the note. At the foot of the note was a memorandum by Sharp, that he would pay it at the house of Saunderson & Co. the plaintiffs in the suit. -Some time before the note fell due, Shdrp absconded, and there was no demand on him. The Court decided, that it was no part of the contract that the note should be paid at the house of Saunderson & Co. and, therefore, it need not be stated in the declaration ; that the maker had merely appointed the house of his banker as the place where he was to be called upon for payment, and when it would be paid; yet this was both an undertaking that there should be cash there, and also an order to the banker to pay it; that it was not necessary a demand should be personal; it was sufficient if it be made at the house of the maker of the note, and it was the ¿same thing, in effect, if it be made at the place where he appoints it to be made ; that if Judge had been the holder of the note, it would have been enough for him to have presented it for payment at the house of Saunderson & Co.; and as they at whose house it was to be paid, were themselves the holders of.it, it was a sufficient demand, for them to turn to their books and see the maker’s account with them, and a sufficient refusal, to find that he had no effects in their hands. In Price v. Mitchell, (4 Camp. N. P. Rep. 200.) the action was brought by the endorser against the maker of a promissory note, at the foot' of which were these words: “ at Messrs. Peres, Smart & Co. 77 Lombard-street, LondonIt was contended for the 'defendant, that the note when due ought to have been presented for payment, at Messrs. Veres, Smart & Co. Gibbs, Chief Justice, was of opinion, that the words at the foot of the note were only a memorandum where payment might be demanded. He observed, that had they been inserted in the body of the note, they would have formed a part of the contract, and a presentment then would have been necessary ; and he referred to the last edition of Bailey, (96.) where it is said, “ if a note be made payable ata particular place, and the place be mentioned in the body of the note, presentment for payment must be made at that place; but where the place is mentioned in the margin, it does not appear that such presentment is necessary Chief Justice Gibbs added, that when the direction to the place of payment is mentioned in Ur margin, or at the foot of the note, as in that case, the inspection and perusal of the instrument show that it was not intended to be any condition to the absolute promise to pay in the body of the note. In Trapp v. Spearman, (3 Esp. Rep. 57.) in assumpsit by the endorser against the acceptor, the defence set up was, that the bill of exchange had been altered after it was given. The alteration was, “ when due, at the Cross Keys, Black Friars Road.” Lord Kenyon said, it was not an alteration, either in the time of payment or in the sum ; that to make a bill void by reason of an alteration, it should be in a material part. Though it had been formerly holden, that even telling up a sum on a bill, or writing any thing on it, would invalidate it, that strictness was now exploded ; and as the alteration in that case was not in a material point, but only designating the place where the bill would be paid, it was not suc|1 an alteration as should invalidate the bill.

The analogy between bills of exchange and promissory notes becomes perfect, the moment a negotiable note is endorsed. The maker of the note is to be regarded in the same light as the acceptor of a bill. Now, nothing is more common among merchants, in England, than for the acceptor of a bill, payable in a given number of days, or in so many days after sight, to accept the bill payable at a banker’s ; the bill itself being silent as to' the place of payment-. And it has uniformly been held, that a presentment of the bill at the place appointed by the acceptor for payment, is sufficient, and dispenses with the necessity of a personal demand./ In Parker v. Gordon, (7 East, 385.) the bill of exchange had been accepted, payable at Davison & Co’s, who were the acceptor’s bankers in London. A question arose, whether the bill had been presented at'the banker’s in due season, on the day it was payable. Lord Ellenborough said, the person on whom the bill was drawn accepted it payable at Davison.& Co’s, who were his bankers, for the purpose of facilitating the payment, and if it were refused payment there, on due presentment, it would be á sufficient dishonour of the bill whereon to charge the drawer. Lawrence, Justice, said, the party might have refused to take the special acceptance ; but if he chooses to take the acceptance in that manner, payable at the banker’s, does he not agree to take it payable at the usual banking hours ? That when a bill is accepted in this manner, it must be understood by all parties concerned, that it is to be presented for payment at the banker’s, withip the usual hours of business. Le Blanc, Justice, .expressed himself to the same effect. The Courts of King’s Bench and Common Pleas are at variance on the question, whether if a bill of exchange be accepted payable at a particular place, it is necessary,in an action against the acceptor, to aver a presentment of the bill at such place. Lord Ellenborough, in Lyon v. Sundius and Sheriff, (1 Camp. 424.) held, that-such acceptance, formed no part of the contract,, and said, that the judges were all of that opinion. In Heard v. Sewell. (1 Holt's N. P. Rep. 363.)- Chief Justice Gibbs persisted in the same opinion. On the ground, then, that the mb-morandum in the margin of the note in this case, did not alter the contract, as between the immediate parties to the note; as it was an appointment of the place where the maker would pay the note; and, as I think, upon authority that has not and cannot be shaken, the maker had a right to make such appointment, a demand of payment at the bank oi America was sufficient. Notice having been regularly given of the dishonour of the bill at such place, the defendant is liable.

It has been urged, that ih Saunderson and others v. Judge, the memorandum at the foot of the note, designating the place of payment, was made before the note was negotiated, and thattherein consists the material difference between that case and this. It may be, that the memorandum in that case, was made before the negotiation of the note; but if it formed no part of the contract, in this case, that the note should be paid at the bank of America, the time when the memorandum was made is immaterial. It was a mere appointment of the place where the maker was to be called on for payment, and where it would be paid, and this the maker could do without reference to the endorsers. It was a circumstance within his control, and under his direction. We have seen, that if the maker of the note had removed to New-York, demand must have been made upon him there, had no place of payment been mentioned in the note, and if the maker had appointed no place of payment. So, also, if the maker had gone on a visit to New-York, or if he had gone there expressly for the purpose of having a demand made upon him there, a personal demand upon him in New-York, and a neglect to pay, would have been a dis-honour of the bill, and rendered the endorser liable, on due notice to him. It was, then, a matter of entire volition on the part of Kane, where the demand should be made, and, as was well observed on the argument, the maker of the note could do by agreement, whatever he could do by his locomotive powers. The defendant having endorsed the note, without any restraint upon the maker, as to the place of payment, he must be deemed to have left that circumstance t(> the discretion and control of the maker. hi the parallel case of a bill of exchange, payable general-, as wejj may tjje (Jj.awer object, that the acceptor having qUaj¡geci his acceptance by making the bill payable at a banker’s in London, when the drawer and acceptor both resided in Liverpool, that the nature of the contract is altered 5 yet we see that nothing is more usual, and that it is perfectly settled, that a demand at such banker’s is a sufficient demand.

It has been insisted, that if the maker of a note endorsed gratuitously, and for his accommodation, can appoint ¡he place of payment, it puts it in his power, by appointing a distant place of payment, to increase the risk and responsibility of the endorser, without his assent, and contrary to his understanding of his engagement. In the first place, this can be guarded against, by inserting a place of payment in the note itself; and, in the next'place, if the maker should appoint a place of payment so distant and remote as to impose an unreasonable-risk on the endorser, it might be considered a fraud upon him. When such a case arises, it will deserve serious consideration, whether the endorser can be rendered liable. In the present case, it is not pretended that the defendant has been injured by the maker’s appointing the place of payment; and the notice of the non-payment of the note was given withiii two or three days after it was dishonoured, In any light in which I have been able to place the question, I cannot doubt of the defendant’s liability; and this is the opinion, also, of my brethren.

Judgment for the plaintiffi

Woodworth, J. being a party, did not, of course, sit in the cause. .