
    * Thomas K. Jones versus Stephen Fales.
    A promissory note is not entitled to grace, by the laws of this state, unies* made payable with grace.
    
      If payment of a promissory note made payable with grace is demanded of the maker before the last day of grace, the endorser is not holden.
    A promissory note made payable in foreign bills is not a cash note, and therefore not negotiable.
    Assumpsit upon four several promissory notes, two of which were made by Fales payable to William Clap or order, and by him endorsed to the plaintiff, and the other two made by Clap payable to Fales or his order, and endorsed by Fales to the plaintiff.
    Upon non assumpsit pleaded, the cause was tried before Parker, J., at the last November term, and a verdict given for the plaintiff upon all the counts.
    It appears from the report of the judge, that with respect to the two first-mentioned notes, upon which the defendant was the promisor, no question arose.
    With respect to the two others, upon which Fales is sued as en dorser, questions were made, as to the demand upon Clap, and the notice to the defendant as endorser.
    One of these notes was payable in sixty days and grace, and the other in four months and grace; and the evidence was, that the messengers of the Branch Bank, and of the Boston Bank, in which these notes had been left by the plaintiff for collection, on the first of the days of grace left a printed notification, in the form used by those banks, at the store or place of business of Clap, giving them to a young man who conducted Clap’s business in his store, Clap himself being in town, and in the open course of business. But it appeared that the messengers did not carry the notes with them, but they remained on the files of the banks when the notifications were carried.
    The notice to Fales, the endorser, was given on the last of the days of grace; and it was proved that this was the mode of demand adopted and used by the banks, and that Fales had been accustomed to do business at those banks, by leaving notes for collection, and by paying notes left for collection by others.
    On one of the notes, which was in the following form, vis., —
    “ 680 dollars. Boston, 21 Oct., 1806.
    Value receiv’d I promise to pay Mr. Stephen Fales or order in sixty days and grace six hundred and eighty dollars.
    [Foreign Bills.] Wm. Clap.”
    
    * A question was made as to its negotiability, on ac- [ * 246 ] count of the words foreign bills being written as above.
    The verdict was taken subject to the opinion of the Court upon all these points; the defendant waiving his right of review, and agreeing that interest be calculated up to the time of judgment, and added to the sum found by the jury, if judgment should finally be entered upon the verdict; and the action stood continued to this term.
    And now Morton, for the defendant, insisted that there had been no legal or regular demand on Clap, so as to make the endorser liable. A demand before the money was due was of no effect.  The notes in this case were not made payable at either of the banks, so that the usage of the banks can have no operation here, if indeed they ought ever to be introduced to lead or control the opinions of the Court. The notes themselves ought to have been carried and presented, in order to constitute a legal demand. 
    
    
      Morton
    
    considered the note copied above as made payable originally in foreign bills, and if so, it was not a cash note, and therefore not negotiable, and then this action does not lie against the endorser. For this point he relied on the arrangement of the words of the note.
    
      Jackson, for the plaintiff,
    observed that English opinions or authorities could have little or no bearing on the construction of this contract as arising out of the expression “and grace.” In England, there are now no days of grace, properly so called. A bill or note made payable in 30, 60, or 90 days, is payable in fact in 33, 63, or 93 days. There is then no propriety in that country in making a demand until the enlarged time expires.
    But in this country, the words have a different import, and it is intended by them to show that the money is actually due at the end of the days specified in the contract, but that the acceptor or maker will not be dishonored if he pays the money within three days after. As this point has not yet received here a judicial decision, [ * 247 ] the Court will resort *to merchants for evidence of the custom among them, not to inquire of them what the law is, but to enable the Court to ascertain the meaning of the parties in making the contract, in order that they may apply the law to it.
    This was the course taken at the trial of the action of Noble vs. Kennoway, before Lord Mansfield, respecting a custom in the Labrador fishery, and afterwards approved and confirmed by the whole court.  From that case it appears, too, that it is not material that the usage be of long standing. The case at bar expressly finds the usage, and brings the knowledge of it home to the defendant.
    
      Upon the second point in the defence, viz., that it was not a cash note, as being payable in foreign bills, which must be understood to mean something different from current money, it does not lie in the mouth of the defendant, who has endorsed the note, to say it is not negotiable. If this were an action by an endorsee against the original promisor, the case might be different; but Fales is bound by his own construction of the contract.
    If the opinion of the Court should be that this was an original promise to pay in foreign bills, still it is apprehended that by this expression is to be understood a particular species, class, or description, of bank bills, all of which are money.  If because the particular kind of money in which the note is to be paid, is specified, it therefore is not a cash note, then a note or bill of exchange for so many pounds sterling, or so many marks banco of Hamburg, is not a cash note or bill, for these are not the money of the United States.
    
    But the plaintiff contends that no such question arises on the note in this case. The promise is to pay 680 dollars. The words “ foreign bills ” are not in the body of the note, nor do they make any part of the original contract. They are inserted at the bottom of the note, between brackets, and imply nothing more than an engagement on the part of the promisee, that he would accept payment of the note in that particular currency.
    * The whole of this question arises merely out of the [ * 248 ] form of the declaration; and if the Court should decide against the action in its present form, and send the cause to another trial, an amendment of the declaration will remove the ground of the objection.
    
      Dexter for the defendant.
    One question in the case is, whether payment of this note was demanded of the promisor in proper time, or, in other words, when the note was payable according to the terms of it. For it will not be pretended that a demand of payment before it is due can have any operation upon the liability of the endorser. Now, if it was the understanding of the parties, at the time of making the contract, that these words “ and grace ” meant three days in addition to the term otherwise limited, then such is the only legitimate interpretation of the contract. The words mean something, or they are mere surplusage; for this notion of a doubtful or suspended state of a contract, as the plaintiff’s counsel has described it, is as novel as it is unfounded. If the words are to be rejected as surplusage, the demand was made too late: if they mean, as we contend them to mean, three additional days, it was made too soon.
    
      That they have an appropriate and definite meaning, viz., three days, is perfectly known to merchants and to lawyers; and it is indecorous to suppose the Court ignorant of what every one else knows. By applying this well-known meaning to the expression used, the whole contract becomes intelligible, and every part of it has effect.
    As to the custom of the banks, of which it appears there was evidence at the trial, we answer that these institutions are not to make laws but for their own conduct. Their chartered powers extend no farther. They are private corporations, each making its own rules of practice. But which of them are to govern? Are they the banks in Boston 1 In this case, the promise being to pay in foreign bills, it should seem that application should rather be made to the banks in the country. But of these each has its own rules, and perhaps each differing from the rest. The consequence of admitting their rules and customs, in determining the meaning of contracts, would, then, be that we should have a different law of contracts in different parts of the state.
    [ * 249 ] * But granting that there may be cases in which evidence of this kind might be proper, — cases in which the usage of the banks would control the general law, — still we insist that this is not such a case. The note here is a simple promise of A to pay to B or his order a sum of money. It is not made payable at any bank, nor is there any thing in the note, or in the case, to show that either of the parties contemplated its ever being lodged in a bank. Is it, then, to be presumed that this note was payable at a bank ? If such is to be the general presumption, it must be on the ground that the banks have vested in them exclusively the legal right to collect cash demands of and for every citizen. In this case, it so happened that this note found its way into one of the banks in Boston for collection. But if such an event was not contemplated at the time of the contract, can the voluntary act of the holder of the note in placing it in a bank alter the rights of the parties, or the law to be applied to those rights ?
    It is said that the defendant has been accustomed to do business at the banks, but it is not found that he conformed in any instance to their rules. Nor, if it was so proved, Would it bind him to such conformity in any other cases, where he should choose to resist.
    Another objection which the defendant relies on respecting this demand is, that the note was not produced or carried by the messenger to Clap, the promisor. Indeed, it does not appear that the messenger was authorized to receive the money, if Clap had tendered it to him without demanding the note. The whole amount of what is set up as a legal demand in this case is, that the promisoi was directed or requested to go to a place, to which he had never undertaken to go, and there pay the amount due upon his note; which is apprehended to be very distinct from, and far short of a regular demand of payment, by which a third person is to be affected.
    It is further contended for the defendant that this note was not payable in money, and therefore was not negotiable. We admit that the English courts have holden the bills of the Bank of England to be cash. In one case, a tender in those bills, no exception being taken to them at the time, was held to be *a good and valid tender. This is as far as those courts [ * 250 ] have gone. But the paper known here by the name of foreign bills, stands on a very different footing. They are merely the promises of private corporations to pay certain sums at their several places of business, some of them at a greater distance, some at a less, but all far from the place where this contract was made, and where it was presumed to be executed. These foreign bills are like the notes of private bankers in England, —good indeed so long as those who issue them remain in credit; but they have never been holden to be money. But these foreign bills are not • current here as bankers’ notes are in England. It is true they are received in retail shops, where the advance on the goods sold probably balances the difference between those bills and cash; but they are not received by merchants but at a discount; nor are they received as cash on any terms at the banks or at the custom-houses. They are not, then, money, nor the general standard by which the value of other commodities is estimated. They are themselves rather measured by that general standard, and are always received at a rate more or less depreciated. Unless the Court can judicially know that some currency known by the name of foreign bills passes as cash, it is conceived they cannot decide the note in this case to have been negotiable.
    But it is made a question whether these words are a part of the note. They were written at the same time with the rest of the note, and doubtless before it was signed. Their being enclosed with crotchets is too minute a circumstance to alter their effect. The preposition in must be understood as omitted, and when it is considered how frequently this part of speech is omitted in mercantile writings, it will be no forced construction to suppose the note intended to read “ in foreign bills.” This word is always omitted in bills of exchange. Thus “ sixty days after sight ” is used instead of “ in sixty days after sight.”
    The gloss attempted to be given to these words by the plaintiff’s counsel still leaves them as part of the original contract If the money was paid punctually, it should be received in foreign bills. It was then a contract to receive foreign bills at the time the note should arrive at maturity.
    
      
      
        Bayley on Bills, 66, 67. — Wiffen va. Roberts, 1 Esp. Rep. 261.
    
    
      
      
        Bayley, 108, cites Mercer vs. Southwell, 2 Show. 180. — Bushton vs. Aspinall Doug. 654—680.
    
    
      
      
        Doug. 510. See, also, Tassell & Al. vs. Lewis, 1 Ld. Raym. 713. — Brown vs Harraden, 4 Term Rep. ] 48
    
    
      
      
        Miller vs. Race, 1 Burr. 457.
    
   [*251] * The Court delivered their opinions seriatim as follows: —

Parsons, C. J.

Assumpsit on four several promissory notes. Of two of the notes, Fales, the defendant, is the promisor; of the other two he is the endorser, William Clap being the promisor. The objections to the verdict arise on the counts upon these last notes. One of them was payable “ in sixty days and grace,” and the other “ in four months and grace.” They were both lodged for collection in a public bank in Boston, where all the parties to these notes live. On the first day of grace, the bank gave the promisor notice that the notes would be due on the third day of grace, and requested him then to make payment, but did not present the notes. On the third day of grace, the notes not being paid, notice was given to the defendant, the endorser.

The objection is, that there was no demand of payment of the promisor, when the notes were due.

A note of hand is not, by the laws of this state, entitled to grace, unless it be expressly made payable with grace, And the endorser is not holden, without his consent, to pay the note, unless it has been presented to the promisor when due, and payment demanded ; or due diligence used for that purpose. When a note is made payable with grace, the terms must have the same construction as are given them by the law-merchant; and consequently the note is not due until the expiration of the time of grace, which is three days, unless the last day be not a day of business, and then it is two days. I must, therefore, infer that the endorser is not hulden upon his endorsement of these notes without his assent, because the condition, arising from the construction of law, on which he engaged to pay, was not performed.

But as this condition is implied by law for the benefit of the endorser, like all other conditions, it may be waived by him for whose benefit it was made. And it is contended that in this case the defendant, when he endorsed these notes, agreed that if the notes should be lodged in any bank in Boston for collection, and if the bank should, according to its usage, notify the promisor on the first day of grace, that the notes would be due on the last day of grace, and should request him to make payment, and should [*252] afterwards, on the *last day of grace, notify the defendant, the endorser, that the notes were not then paid, that he would be answerable on his endorsement. Now, if the defendant made this agreement, he must, both in law and equity, be holden to it.

The evidence is the usage of the banks- in Boston, of notifying in this manner the promisor and endorser of any note, made payable with grace, and lodged for collection, and the payment by the parties on such notice; and that the defendant was conusant of this usage, and had in other cases conformed to it. This usage, I am satisfied, is evidence of the defendant’s agreement proper to be submitted to the jury, to infer from it the agreement of the de fendant. Evidence of this kind, and for this purpose, is not to establish new law, but to prove that the defendant has waived a condition implied by law for his benefit, and has consented to other terms, to which without question he might have expressly agreed, This objection to the verdict ought not, in my opinion, to prevail.

The last note is a promise to pay “ six hundred and eighty dollars.” These words nearly complete the line, at the end of whicii is a dash. — Below this line, at the left side of the page, and nearly on the same line with the promisor’s name, are written the words [Foreign Bills] included by brackets. The verdict, being general on all the counts, is objected to, because this last note is not a negotiable note, being made payable, not in cash, but in foreign bills.

It is not clear that we can, as judges, precisely determine the import of the words foreign bills; but I think we may do it with reasonable certainty. It is the common sense of the people, and must be our understanding, that when the word bills is used as a medium or subject of payment, the parties intend bank notes of some description. As judges, we can take notice that several in corporated banks do their business in Boston, and that there are many incorporated banks who do their business in other towns, some at a greater, and some at a less distance from Boston. This notice we have from the public acts of incorporation. We must take notice, in common with the people, that bank notes derive their value, not only from the certainty, but the facility, of payment; consequently that a man in trade in Boston, holding a f * 253 ] bill issued * by a bank at a distance from Boston, can less easily obtain payment, than he could if the issuing bank was near to him; and that the different facility of procuring payment of different bills may create a difference in their value. I must, therefore, conclude that the import of the words “ foreign bills ” is not cash, but something differing in value from cash. The inference is, if these words are a part of the promise, and that by the promise the maker of the note did not bind himself to pay cash, but something, the value of which was to be estimated in cash, that the note objected to is not a cash note.

The next question is, whether these words, thus written and placed, are a part of the promisor’s contract. There is no evidence by whom the body of the note was written, or whether these questionable words were inserted before or after the signature, or by the promisor or promisee. I can, therefore, reason only from the face of the note. And it is a reasonable conclusion, that they must all be taken to be the words of the maker of the note, written before it was delivered to the promisee, and not the words of the promisee, assuring to the promisor any honorary or legal indulgence, either absolute or conditional. If they are the words of the promisor, they must be considered either as idle words, or as a part of the promise to which he gave his signature; or as a subsequent memorandum, explanatory of the manner in which the promise was to be performed. I am not authorized to consider them as words without meaning; and I do not think it material, whether they were part of the original contract, or added in explanation of it. For when the promisee took the note with these words on it, he was subject to the explanation in the memorandum, if it was one, as much as he would be bound by these words, if they were a part of the promise.

The words may secure a benefit to the promisor, and I consider him as stipulating that the money might be paid in foreign bills ; and I consider the promisee, by taking the note thus written, as agreeing to the stipulation. And I can have no doubt, if, on the day of payment, the promisor had tendered to the promisee foreign bills in payment, and they had been refused, that this tender and refusal might have been well pleaded to a subsequent action upon the note.

[ * 254 ] * It is, therefore, my opinion that the note was not, in its original creation, a note for the absolute payment of cash, and so was not negotiable. This opinion, resulting from the face of the note, would have been different, if there had been any evidence that by these words the parties had a different design.

But is the verdict to be set aside for this cause ? The action is by the endorsee against the endorser; and it has been in this state the immemorial usage for endorsees of notes not negotiable to declare against the endorsers as on a negotiable note. This usage may be in a few words explained.

The statute of 3 and 4 Anne, c. 9, was never enacted here; but in practice the provisions of the first section were early adopted, and the form of declaring on negotiable notes resulting from that statute was extended to notes not negotiable. It may, therefore, be considered as the common law of the commonwealth, that, all cash notes are negotiable; and that all notes for merchandise may be sued by the promisee against the promisor, and, when endorsed, by the endorsee against the endorser, who may declare in the same manner as he might if the notes were negotiable,

Upon this principle, the want of negotiability in the note comes to be no objection to the verdict. But it is insisted that this case is an exception to the general rule, because, although the note was admitted in evidence, yet the plaintiff having declared on it as a cash note, it did not support the count. As it is not a cash note, it did not support the count; and if the defendant had objected to it on that ground, the objection must have prevailed. But I am strongly inclined to the opinion that objections to the evidence, as not comporting with the declaration, ought not generally to be admitted, unless the objections were made at the trial, and the point reserved. A contrary practice would introduce much mischief. Had such objection been made at the trial, according to the ancient usage of the Court, in granting amendments at any time before the cause is committed to the jury, the plaintiff might have amended his declaration, and cured the defect, and thereby saved much time and expense to the parties.

But I think there ought to be exceptions to this rule, which as a general rule is correct. If the objection goes to arrest * the judgment, it ought to be heard; because the de- [ * 255 ] fendant may move in arrest of judgment, after he has failed in a motion for a new trial. But this is not the present case. If the declaration unamended had varied the defendant’s defence, either as to the principles of it, or as to the rule of damages, the objection might be made. But it appears to me that this case is not within this exception. For on producing the note to the jury, it was competent to the defendant to have given any thing in evi dence to defeat the plaintiff’s demand, or to ascertain the damages, which he could have given, if the declaration had been amended.

Another exception may be, when judgment according to the verdict will not be a bar to another action on the same contract, on the same breach of it. And I think the defendant’s case is within this exception.

When judgment in one personal action is a bar to another personal action, the cause in both actions must be the same; which must appear from the record, or from the averment of the party pleading. But he cannot aver any thing repugnant to a record, to which he is a party. Now, a contract to pay money, and a contract to pay money’s worth in bills, appear to me to be essentially different, and cannot be averred to be the same contract. And if we were to render judgment on this verdict, it could not be pleaded in bar to an action brought by the plaintiff against the defendant, on the same note, declaring on it as a contract to pay money in foreign bills.

Upon the whole, it is my opinion that the verdict ought to be set aside, and a new trial granted. The plaintiff may then amend, or, if his case will admit of it, explain by evidence, that by the words “ foreign bills ” the parties intended an effect consistent with the negotiability of the note.

Sedgwick, J., declared his concurrence in opinion with the Chief Justice.

Sewall, J.

I concur in the opinion for granting a new trial, because the words “ foreign bills,” at the bottom of the note declared on, appear to be susceptible of an explanation which may operate to vary the tenor and state of the contract; but unexplained, I think them words of no meaning applicable to the original con- [ * 256 ] tract. The defendant * proposes to show by mercantile usage, or by other evidence, that these words are a part of the original contract; and the plaintiff insists, on the other hand, that they are to be understood as a collateral and distinct engagement, not applicable to the contract, as it now appears, in the hands of an endorsee.

I think there ought to be an opportunity for this explanation, which was in effect precluded at the trial. If the underwritten words make a part of the original contract, the writing given in evidence at the trial is not competent to support either of the counts in the plaintiff’s declaration. But if not so explained, by evidence from usage or other circumstances brought home to the knowledge of the endorsee, I should think the verdict now excepted to correct upon the other circumstances of the case.

Thatcher, J., of the same opinion.

Parker, J.

I am not satisfied that there ought to be a new trial upon either of the points upon which it is claimed; because substantial justice has been manifestly done by the verdict; and in my opinion, sufficiently within the forms of law to warrant a judgment thereon.

With respect to the objections arising from the supposed want of demand on the maker of the note, when it became due, and notice to the defendant as endorser, I shall say nothing; because we all agree that there shall not be a new trial on those grounds; and the Chief Justice has very clearly given the reasons of this opinion.

With respect to the last objection, viz., that the defendant is sued as endorser of a promissory negotiable note, and that the declaration is not supported by the note exhibited in evidence, because the words “ foreign bills ” are found on the paper on which the note is written, I find myself alone in the opinion that this objection ought not to prevail.

It seems to be admitted, on all hands, that the intention of the parties to the instrument, as originally made, is to be resorted to for an explanation, where its words contain any ambiguity; but that intention must be gathered from the nature and terms of the contract. Indeed, in this case, no evidence has been offered to control or explain the contract; but the legal effect of the instrument itself is what the parties, by their exceptions, aim to ascertain.

*Now, it is evident that Clap, the promisor, and Fales, [* 257 ] the promisee, at the time of making this note, intended that it should be negotiable. This appears from its being made payable to Fales or order, and from the use of those terms which are generally adopted in notes made for the purpose of transfer in the market, or of deposit in the banks for collection. There are words in this sufficient to effectuate this intention, and to satisfy those to whom it might be transferred, that such was the true na turc of the contract.

But the words “ foreign bills ” are written on it, and they must be allowed some signification. I apprehend a due signification may be allowed them, without impairing the validity of the contract, as intended by the parties when it was made. I consider those words as furnishing evidence of the understanding of the promisor and promisee, that if the sum secured by the note should be paid at the time stipulated, it should be received in bills of those banks which have acquired the denomination of foreign; or in money at a dis count, according to the market value of such bills on the day of payment.

Perhaps the endorsee, if he received the note before the day of payment, seeing those words on it, would be held to have taken it subject to the same agreement. But the original parties to the note seem to have been aware that a note payable in any thing but money was not negotiable. They, therefore, lest the intention which they manifest in the body of the instrument should be frustrated by the insertion of the mode of payment agreed on between them, made the memorandum rather for the purpose, it should seem, of giving an honorary claim to the promisor to discharge his note, in a manner different from the express provisions of the contract, than with the intention of defeating the negotiability of a note, which, possibly for the convenience of both, had been made nego liable.

I am satisfied that the memorandum never was intended to check or interrupt the transferable nature of the note; but that the verdict has given that effect to it which its terms import, and which the parties originally designed. I am therefore opposed to granting a new trial.

New trial granted 
      
       [Vide Rev. Stat. c. 33, § 5. — Ed.]
     
      
      
         [Such an agreement can hardly be made out from the facts, nor do they appear to be sufficient to control the plain import of the contract. — Blackett vs. The Royal Exchange Assurance Company, 2 Cromp. & Jerv. 244, 249, 250. — Schooner Reeside, 2 Sumner, 567. — Smith vs. Wilson, 3 B. & Ad. 728. — Taylor vs. Briggs, 2 Car. & P. 525. — Homer vs. Dorr, 16 Mass. Rep. 26.—Bryant vs. The Commonwealth Ins. Co., 6 Pick.131. — Leach vs. Perkins, 5 Shep. 462. And see note to Lincoln and, Kennebec Bank vs. Page, 9 Mass. Rep. 157, to Blanchard vs. Hilliard, 11 Mass. Rep. 85, and to Smith vs. Whiting, 12 Mass. Rep. 6. But see City Bank vs. Cutter, 3 Pick. 414. — Smith vs. Whiting, ub. sup. — Lincoln and Kennebec Bank vs. Page, ub. sup. — Blanchard vs Hilliard, ub. sup.—Pierce vs. Butler, 14 Mass. Rep. 303.— Widgery vs. Munroe, 6 Mass. Rep. 449. — Whitwell & Al. vs. Johnson, 17 Mass. Rep. 449. — Odiorne vs. Maxcy, 13 Muss. Rep. 181. — Loring vs. Gurney,5 Pick. 15.— Tibbetts vs. Sumner, 19 Pick. 166. — Parrott vs. Thacher, 9 Pick. 426. — Meldrum vs. Snow, 9 Pick. 445. — Stevens vs. Reeve, 9 Pick. 198. — Dwight vs. Whitney, 15 Pick. 179. — Hartford Bank vs. Stedman, 3 Conn. Rep. 489. — The Bank of Columbia vs. Fitzhugh, 1 Har. & Johns. 239. — Pearson vs. Bank of the Metropolis, 1 Peters, 93 — Raborg vs. Bank of Columbia, 1 Har. & Johns. 231. — Ed.]
     
      
      6) [There seems to be nothing to justify this addition to the plain and intelligible terms of the promissory note. — See Pierce vs. Butler, 14 Mass. Rep. 303.— Ed.]
     
      
      
         [It may well be questioned whether the instances in which such actions had been at this time sustained, proved any thing more than sheer ignorance of the law. The practice of the profession and of the courts, in the times referred to, was too irregular and uncertain to afford any sound rule, or establish any law, relative to this matter And, aside from the statute of 3 and 4 Anne, c. 9, it is not easy to distinguish as to its effect between a promise, in the form of a promissory note, and any other simple con tract, where the consideration in pleading must be set forth. —Ed.]
     