U.S. Supreme Court
Adams v. Otterback, 56 U.S. 15 How. 539 539 (1853)
Adams v. Otterback
56 U.S. (15 How.) 539
Where a note was given in the District of Columbia on the 11th of March, payable sixty days after date, and notice of its nonpayment was given to the endorser on the 15th of May, being Monday, the notice was not in time.
Although evidence was given that since 1846, the bank which was the holder of the note, had changed the preexisting custom, and had held the paper until the fourth day of grace, giving notice to the endorser on Monday, when the note fell due on Sunday. This was not sufficient to establish an usage.
An usage, to be binding, must be general as to place, and not confined to a particular bank, and in order to be obligatory must have been acquiesced in and become notorious.
It was an action of assumpsit brought by Adams, the plaintiff in error, upon a promissory note drawn by Haw, Yellott & Company, in favor of Philip Otterback, the defendant in error, and discounted by the Bank of Washington. The proceeds of the discounted note were paid by the bank upon the check of Otterback. After the note had been protested for nonpayment and notice of protest had been given to the endorser, it was assigned to Adams, the plaintiff in error.
On the trial of the cause, the plaintiff gave in evidence the note, the handwriting of drawers and endorser being admitted, and proved that the note was discounted on the 11th of March, 1848, the day of its date, and the proceeds paid on defendant's check; that the note which was payable at sixty days was unpaid at maturity, and was delivered to George Sweeny, a notary, on Monday, the 15th day of May, 1848, after 3 o'clock, who on that day demanded payment, which was refused, and thereupon, on the same day, he delivered a notice for the endorser at his dwelling.
The plaintiff also gave in evidence by the teller and bookkeeper of the bank that after the decision of the case of Cookendorfer v. Preston, and about two years prior to the date of the note in controversy, the bank changed the custom which had previously prevailed in regard to the demand and protest of negotiable discounted notes held by the bank, and that in all cases of discount they had up to that time held the paper until the fourth day of grace; and by the change, if that fourth day of grace happened to fall on Sunday, it became the custom of the bank to retain them till Monday, and on that day deliver the same to the notary to demand payment and give notice. And on cross-examination it appeared that only four instances of practice under this custom were shown. chanrobles.com-red
Upon this state of facts, the court instructed the jury that if they should
"find the whole evidence aforesaid to be true, yet the plaintiff has not thereby shown that he has used due diligence in demanding payment, and giving notice of the nonpayment of said note, and is not entitled to recover in this action."
To this instruction the plaintiff excepted, and the case was now to be argued upon it. chanrobles.com-red