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Pearson v. Bank of the Metropolis, 26 U.S. 1 Pet. 89 89 (1828)

Pearson v. Bank of the Metropolis

26 U.S. (1 Pet.) 89


In an action against the endorser of a promissory note Made "negotiable in the Bank of the Metropolis," the declaration averred a demand of the same at that bank. No other notice of the nonpayment of the note was sent to the endorser but that left for him at the Bank of the Metropolis, and it was proved that there was an agreement by parol with the endorser as to other notes discounted previously by the bank for his accommodation, that payment and demand of payment should be made at the bank, the endorser residing a considerable distance from the bank.

The court held that parol evidence was admissible to show the agreement relative to the place where payment of the note was to be demanded, although the agreement did not appear on the face of the note. Such an agreement is a circumstance extrinsic to the contract made by the note, and its proof by parol is regular.

The endorser of such a note is himself bound by the contract made by the drawer and by the established and known usage of the bank.

Where it was omitted to allege in the declaration on the note a demand of payment on the person of the maker, but it averred a demand at the bank "where the note was negotiable," such averment in the declaration could not be true unless there was an agreement between the parties that the demand should be made there, and the averment must have been proved at the trial or the plaintiff could not have obtained a verdict and judgment, and after a verdict the judgment will be sustained.

This action was instituted in the Circuit Court for the County of Washington by the Bank of the Metropolis on a promissory note dated May 26, 1819, drawn by George A. Carroll and endorsed by W. Carroll and Robert Brent, for $1,100, payable at sixty days and negotiable at the Bank of the Metropolis. The declaration set out the note and averred a demand of payment at the Bank of the Metropolis. In support of the issue on the part of the plaintiffs in error evidence was offered that the accommodation given by the said bank to George A. Carroll on a note similarly drawn and endorsed with the present was given by the bank about three years before the date of the note, on which the suit was brought and was given with the knowledge of the endorsers thereon and in consequence of their solicitation, and for the purpose of proving that it was the agreement and understanding of the bank and W. Carroll at the time of agreeing to give him this accommodation that the note to be discounted should be payable at the Bank of the Metropolis, and the notes severally taken for the renewal of such notes and for the continuance of the said accommodation should be in like manner

Page 26 U. S. 90

payable and demanded at the bank; they offered to prove by parol evidence that the said Carroll did not reside in the District after the winter in which W. Carroll lived in the City of Washington, and that that winter was the winter of 1817, and that after such time, said George A. Carroll occasionally visited the city and resided at Washington, in Maryland, about twenty miles from the city, and at Port Tobacco, and that many of the notes taken for the continuance of the said accommodation were expressed to be payable at the bank, and that all notes previous to the one now sued on were there demanded and such demand acquiesced in as sufficient, and subsequent notes given in renewal of the notes so demanded; that it was the custom of the said bank to require in all cases where the drawer was a nonresident that there should be such an agreement to pay such notes at the bank; that the bank never would have agreed to discount the notes except upon such a condition, and this was the understanding of the bank, and necessarily presumed to be known to W. Carroll and the endorsers at the time of making such accommodation or at the time of his removal from the City of Washington.

The counsel for the defendants objected to the evidence, but the court overruled the objection and admitted the evidence to be given. And the counsel for the defendants prayed the court to instruct the jury that to enable the plaintiffs to sustain their action aforesaid against the defendants, it was necessary that a personal demand should have been made upon the maker of the note for the money in the said note mentioned, but the court refused to give the instruction, but instructed the jury that if from the evidence given as aforesaid the jury should be satisfied that it was agreed by all parties whose names appear on the notes and the plaintiffs that the payment should be demanded at the Bank of the Metropolis and that it was so demanded at the bank, then a personal demand of the maker was not necessary. To which several refusals and opinions of the court the defendants by their counsel excepted and sued out this writ of error.

Page 26 U. S. 91

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