would be equivalent to saying, that his contract is one thing in the hands of a bank and another in the hands of a private per son. § 700. When a note or bill is made and indorsed payable at a particular bank, it is reasonable to presume that the parties contract with reference to its mode of doing business, and thus make it the law of the contract: and so where a 511* *negotiable note is made payable in a particular city, where it is an established custom of all the banks to do busi 1 Parker v. Gordon, 7 East, 385; 5 Smith, 358; S. C., and other cases showing that such a bill or note should be presented during the usual hours of business, within banking hours. Mills v. Bank of the United States, 11 Wheat., 431. "It has been decided by this court, upon full consideration and argument, in the case of Renner v. The Bank of Columbia (9 Wheat.. 582), that where a note is made for the purpose of being negotiated at a bank, whose custom, known to the parties, it is to demand payment and give notice on the fourth day of grace, that custom forms a part of the law of such contract, at least so far as to bind their rights. In the present case, the court is called upon to take one step further; and upon the principles and reasoning of the former case, it has come to the conclusion that when a note is made payable or negotiable at a bank, whose invariable usage is to demand payment and give notice on the fourth day of grace, the parties are bound by that usage, whether they have a personal knowledge of it or not. In the case of such a note, the parties are presumed by implication to be governed by the usage of the bank at which they have chosen to make the security itself negotiable." Decided in 1826; opinion delivered by Mr. Justice STORY. 'Bridgeport Bank v. Dyer, 19 Conn. R., 133. A usage of the bank to send bills and checks by a captain of a steamboat once a week to New York, for collection, may be shown in an action against the indorser of a check, by way of proving diligence, or accounting for delay. Such usage, known to the parties, is evidence of an agreement to dispense with or not to insist upon the usual rule of law regarding the transmission of checks. Decided in 1848. In Adams v. Otterback, 15 How. U. S. R., 539, the question arose whether a demand of payment could be postponed till the fifth day after it became due, by showing a custom of two years' standing established by the bank, it being a change from a former custom, and that by the change, if the fourth day of grace happened to fall on Sunday the note was delivered to the notary to demand payment and give notice on Monday, and the court delivering their opinion say: “To constitute a usage, it must apply to a place, rather than to a particular bank. It must be a rule of all the banks of the place, or it cannot consistently be called a usage. If every bank could establish its own usage, the confusion and uncertainty would greatly exceed any local convenience resulting from the arrangement. age is not proved in this case." The bill had been discounted by the bank, and a distinction was taken between this and former cases. * -* The us ness in a particular manner, the parties to it are fairly chargeable with knowledge of a usage so general in its character. $701. Time of presentment and demand.-For the purpose of charging the drawer and indorser, the rule is that bills and notes should be presented and payment thereof demanded on the very day they become payable; and that is rendered certain by the terms of the instrument as modified by the law or custom of merchants. The time can neither be hastened nor delayed a single day.' 8702. *Notes that are drawn payable on demand, *512 or that specify no time of payment, are, in one sense, due immediately, so that the statute of limitations begins to run against them from the day of their date.' But inorder to charge the indorser of a note payable on demand, it is sufficient if the demand of payment be made within a reasonable time.' What is a reasonable time within which a draft must be presented to the drawee depends upon the circumstances of the case. Thus where a draft was drawn on New York by a bank in Erie, Penn., in favor of a traveling agent, who in pursuance of his business did not return to his home in New Jersey, where he had the first opportunity to negotiate it, until ten days after its date, it was adjudged that the delay was not unreasonable considering the agent's business." Where the party receiving drafts took them with him to Indiana, where he resided, and by so doing the drafts were delayed several days beyond the time when, in the exercise of legal diligence they should have been presented, and in consequence of which delay they could not be collected, it was held that knowledge by the drawer that the 'Farmers' Bank v. Duvall, 7 Gill & John. R., 78; 6 Metcalf, 13. Nor can a mistake be shown to excuse presentment on the right day. Bank of Del. Co. v. Broomball, 38 Penn. State, 135. 2 Wenian v. The Mohawk Ins. Co., 13 Wend., 267. The rule is different where a note is payable a certain time after demand. Cornell v. Moulton, 3 Denio R., 12; Norton v. Ellam, 2 Mees. & Wels., 461; Thompson v. Ketcham, 8 John. R., 190, 374. 1 Cowen R., 397; 3 Wend., 75. What is reasonable time has been considered in a former place. Salmon v. Grosvenor, 66 Barb., 160; Strong v. Duke, 5 Alb. L. J., 250; Keys v. Fenstermaker, 24 Cal., 331; ante, 390392, 156-160. Knott v. Venable, 42 Ala., 186; Fugitt v. Nixon, 44 Mo., 295; Salisbury v. Renick, id., 554. 5 Nat. Newark B'k'g Co. v. Second Nat. Bk., 63 Pa. St., 404. payee was about to depart immediately for his home in Indiana, and that he would probably take the drafts with him did not imply such an agreement or consent that he should do so, as would excuse his laches in presentation.' Where a bill is made payable, on demand if the holder reside in the same place where it is payable, the bill should be presented on the same day it is drawn in order to hold the drawer and indorser." Where, however, the holder resides in a place other than that of payment the bill should be forwarded at the latest by the regular post the day after it is received." $703. These rules, however, are not absolute, but if the bill be presented in a reasonable time it will be sufficient. Thus, where the draft required the indorsement by a school board, for which purpose it was necessary to convene the board, a delay of a week was held not unreasonable. So where a draft drawn on a bank in Chicago was mailed the same day to the payce in Dakotah, and was received by him after some delay in the mail, and he upon the first opportunity put the same in circulation, and it was kept in circulation and no delay was suffered except that incident to the transaction of business in a thinly settled country, it was held that a delay of thirty-five days in presenting it was not such delay as would discharge the drawer. So a promissory note payable on demand must, like a bill, be presented in a reasonable time or it will be considered overdue and dishonored." And the rule is the same even if the note be expressed to he payable with interest.' So where a bill or note is transferred by indorsement after maturity it is payable on demand, and such demand must be made within a reasonable time. The statute of limitations begins to run immediately on a note payable on demand, whether it be with 645. 1 Darnall v. Morehouse, 45 N. Y., 64. Byles on Bills, 337; Chitty on Bills, 431; Piner v. Clary, 17 B. Mon., 3 Chitty on Bills, 432. 4 Muncy Borough School Dist. v. Commonwealth, 84 Pa. St., 464. 5 Montelius v. Charles, 76 Ill., 303. Sice v. Cunningham, 1 Cow., 397; and see Alexander v. Parsons, 3 Lans., 333, as to a note payable one day after sight. * Herrick v. Woolverton, 41 N. Y., 590; commenting on Merritt v. Todd, 23 N. Y., 28; Thompson v. Hale, 6 Pick., 259; Sylvester v. Crapo, 15 Pick., 92; Newman v. Kettelte, 13 id., 418; Nevins v. Townsend, 6 Conn., 5; Morey v. Wakefield, 41 Vt., 24. 8 McKewer v. Kirkland, 33 Ia., 352; Berry v. Robinson, 9 Johns., 121; or without interest.' By some authorities the question of what is a reasonable time is held to be a question of fact for the jury. By others that it is a question of law for the court," where the facts are undisputed it is undoubtedly a question of law. And where bills are drawn payable so many days or months after sight, the time of payment is fixed by the act of presenting and accepting the bills; and the rule of law is satisfied if the presentment for acceptance be made within a reasonable time." Where a draft on New York, indorsed to a party in Wisconsin, was not mailed to New York to be presented for payment until after fourteen days, when it was miscarried and the second of exchange subsequently sent forward was presented, it was adjudged that the delay in sending the first was presumptive evidence of laches." 8704. To determine with accuracy the time when a note or bill becomes payable, it is necessary first to ascertain the rules of computation—the legal principles upon which time is calculated. On checks and notes and drafts payable on demand, ordinarily no question can arise; they are payable on demand, strictly, according to the terms of the instrument." But when a bank check is postdated on a Sunday, or a note or other contract, not entitled to days of grace, falls due on a Sunday, that day is excluded from the calculation and considered as stricken from the calendar;' and the party bound has the Monday following to make his payment in, or perform his engagement. So, in computing the time allowed for pleading Beebe v. Brooks, 12 Cal., 308; Light v. Kingsbury, 50 Mo., 331; Goodwin V. Davenport, 47 Me., 112; Levy v. Drew, 14 Ark., 334; Dwight v. Emerson, 2 N. H., 159. 1 Herrick v. Woolverton, 41 N. Y., 591. Field v. Nickerson, 13 Mass., 131; Eccles v. Bullard, 2 McCord, 389; Gray v. Bell, 2 Rich., 6. Sice v. Cunningham, 1 Cow., 408; Himmelmann v. Hotaling, 40 Cal., 111; Dennett v. Wyman, 13 Vt., 485. 754. 420 John. R., 146, 176; 7 Cowen R., 705; Fromme v. Kaylor, 30 Texas, Walsh v. Dart, 23 Wis., 334. 6 Woodruff v. Merchants' Bank, &c., 35 Wend., 673; Moyser v. Whitall, 9 Barn. & Cres, 409; 20 Wend., 205; 2 Conn. R., 69; 10 Ohio, 426; 1 Metcalf, 47. Avery v. Stewart, 2 Conn. R., 69; Salter v. Burt, 20 Wend., 205; Kuntz v. Tempel, 48 Mo., 475; Barrett v. Allen, 10 Ohio, 426. and other matters of practice, under the rules of court, it is weil settled that when the last day falls on Sunday, the party has the whole of the next day in which to perform the act required.' But in computing the time allowed for pleading, or the time mentioned in a contract for the doing of an 513* act, *intervening Sundays are to be counted like other days; except in cases where the evident intention is to give business time." § 705. Computation of time.-The period of a year is a determinate space of time, consisting of three hundred and sixty-five days; the added day of bissextile or leap year and the day immediately preceding being counted together as one day. At common law the period of a month was reckoned in two ways; either as a lunar month, consisting of twentyeight days, or as a calendar month; and in general, when the term occurred in deeds or statutes, it was formerly construed to mean a lunar month, or twenty-eight days, unless otherwise expressed. But in the case of bills of exchange, promissory notes and other mercantile contracts, a month is always a calendar month; so that if a bill or note is dated on the tenth of January, and made payable one month after date, it is due, the three days of grace being included, on the thirteenth of February. In this state, the computation of the time is regulated in all cases by statute, and the term "month" is declared to mean a calendar month, when used in deeds, statutes or contracts; though for the purpose of calculating interest, a month is considered the twelfth part of a year, and as consisting of thirty days.* § 706. The difference between the old and the new style in the computation of time, which is now twelve days, requires to be noticed. Upon a bill drawn at a place using one style, 15 Wend., 84; 1 Stra., 86; 6 John. R., 326; 2 Hill R., 377, note b; Code of Civil Procedure, § 788. 5 * 20 Wend., 207; Wooley v. Clements, 11 Ala., 229. 3 Anon., 2 Hill R., 375. 421 Henry, 3; 2 R. S. of New York, Banks' 5th ed., 828. 2 Bla. Com., 141; 6 Term R., 224; McMarchey v. Robinson, 10 Ohio, 496; Thomas v. Shoemaker, 6 Watts & S., 179. 64 Term R., 148: Crockell v. Gray, 3 Brod. & B., 187. 7 3 R. S. (Banks' 5th ed.), 73. Story on Bills, § 331. |