The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-22

not its nominal value. Robinson Va. Noble, Pet
l9S; Mccormick Va Tootter, 10 SaBgt- and r. 3d.
But where the dep0sit II general and there Il NJ
posted Whatever Il may BE- passes to the bank, ant
ana tne transaction 10 unaffected by the character
OF the money In which the deposit was made and
tue Dank becomes liable for the amount as debt
which can only be discharged by such money as Ii
by law legal tender. Bank Of Kentucky Wlstel
q the contract being specifically enforcible, the
next question then u.s. was the usage offered to be
Unlike the case Of Thompson Va Riggs, just re-
ferred TO- there was evidence In this case that the
deposit In controversy was not made IN the ordinary
way, and without previous inquiry and negotiation
In regard 10 IT, II seems from the testimony OF ab
liston, the paints' agent that 1t not designed
that the gold should placed in the defendants bank
make some special arrangement In regard to It the
defendants 0nicers were made aware and acceded
thereto; and hence the designation OF the deposit al
coin la the PLANTING bank book. II, then, It was
not an ordinary deposit TO pc checked out In the
ordinary way by checks payable In paper currency,
what were the conditions and stpulations upon
which the defendant was 70 account TO the plaintiffs
The simple entry OF itself furnishes no evidence OF
such terms nor does the oral evidence OF the agent
making the deposit tend to establish any express
stipulations in regard to the manner In which the
deposit was to be paid; and we at loss to ascer
tam the Intention OF the partes except as we may
gather II by implication and presumption rom the
attending circumstances. II, however, there be a
general and well established usage or custom upon
the subject prevailing with the banks OF the
the parties acted in reference to such usage, ald
that terms and conditions not contained In the
written entry, and which were not, by express
words agreed upon at the time were, nevertheless,
In the mind OF the parties and formed part OF the
contract. For, as 1t was said by Parke, b. Hutton
VS.. Warren, M. and W., ATS, sit has been settled
that In commercial transactions evidence Of custom
and usage Is admissible to annex incidents TO writ
ten contracts In matters with respect to which they
are silent. The same rule has also been applied to
contracts In other transactions OF life in which
known usages have been established and prevailed,
and this has been done upon the principle OF pre-
sumption that In such transactions the parties did
not mean to express by writing the whole OF the
tract by which they intended 70 be bound, but con-
tract with reference to those known uSages.n But
such usages, to be admissible, must be shown to be
well established, uniform general and notorious;
for is from those attributes Of the particular usage
that the presumption arises that the contract was
made with reference to 1t.
In the case Of Thompson vs.. Riggs already referred
TO- the Court said that evidence OF general usage
or custom, In the ordinary sense OF those terms
offered by the plaintiff or appeared in the record and
therefore the evidence proposed In that case was
properly rejected.
But it was conceded that customary rights and in
cidents universally attaching to the subject matter
implicitly annexed to the language and terms OF the
contract unless the custom Is expressly and particu
larry excluded. In the case now before US there s
nothing either In the evidence or the nature OF the
transaction itself to exclude the operation OF the
usage offered to be proved 1t is doubtless true that
or vary the express spulatons Of contract restrict
ing or enlarging the exercise OF the customary right
nor Will 1t be admitted to control the general rules OF
because OF the absence OF express stipulations In
the contract under consideration that proof OF exist
ing usage IN reference TO which the contract La sup
posed 70 nave been made ID admissible In order 10
ascertain the real meaning Of the parties. "Omis-
si0ns may be supplied In some cases by the intro
duction OF such PROOF but 1t cannot prevail or
nully the express provisions and stipuaions OF the
contract So that where there Is no contract usage
WIN not make one Us 1t can only be admitted either
70 interpret the meaning OF the language employed
by the parties In the absence Of express stpuatl0ns
or where the meaning Ii equlvOca or obscure" is
wall 6!e; Blven Vs. New Eng. sScrew Co., 23l How,
1927
We are, therefore, Of opinion that the court below
the prorer made by the plalntifs and that the eyi
dence OF the usage such e. was proposed to be
shown to exist was admissible for the purposes for
8. The third and fourth exceptions win be disposed
OF together a. they both present the same question:
and IN regard to the rulings OF the court below
stated In these exceptions we think there was
Instead OF pursuing the prefer stated In the second
bill OF exception and proving fact the existence
the banks OF the city and existing before and at the
time OF the deposit In question. the plaintiffs under
TOOK TO establish the usage by proving few particu
Lar instances OF dealing In some two or three Of the
banks, not including that OF the defendant TINS
mode OF proving the existence Of the usage even II
the transactions referred to by the witnesses were
OF character different from that proved by them Ia
wholly inadmlsslbe. The transactions detailed by the
witnesses. however instead Of proving the existence
subject according construction OF Them prove
just the reverse. The plaintiffs bound to prove
under the prorer and according to the rules OF law
upon the subject the existence OF the general usage
and practice prevailing with the banks fact and
not as matter OF judgment or opinion OF the wit
nesses deduced from the manner OF dealing In few
instances in particular banks. Lewis vs. Marshall,
Man. and CIR. 729; Allen vs. Mer. Bank, ~ Wend.
222; Adams vs. Otterback, Is Md. 345.)
We think, therefore that 1t was to allow such
evidence as that contained In these exceptions TO be
TO the jury.
T. we come now to the consideration OF the de-
lendants prayers set forth In the Nth exception.
The first OF these prayers was properly rejected II
assumes that the deposit sued for was made in the
der notes, and that the bank was not bound |
TO pay In coin. IT, as We have sad,
there be special contract to pay in specie,
demand AMI II was for the jury to determine, from
all the facts and circumstances attending the making
Of me deposit, whether such special contract
existed. Habliston, the witness, proved that at the
request OF The plaintiffs ne went TO the bank OF the
defendant to ascertain whether II would receive
special Deposit that he spoke TO the receiving teller
OF the bank by whom he referred To the cashier,
who agreed to receive IT, but requested the witness
70 put the coin In box; aud upon the witness say
ing he had no box the cashier directed the teller 10
receive the gold special deposit and enter IL
ON the book; that witness then went after the gold
the plaintirs book. The entry As follows:-'ls6i
Dec. 30-Cash (coin) S3,000.n AT the time this de-
post was made the banks OF the state had
specie payments, and gold com
as compared with paper currency, was at a
premium. with strong prospect OF greater
depreciation OF the paper money OF the country.
These facts were all before the jury and from them
the special contract declared might CT might not
be found To exist. Upon the hypothesis that such
special contract existed the checks made proper
demand and the defendant was In default in not
paying the amount In coin, instead OF rendering 1t
In Treasury notes. IL would therefore have been
manifest error To grant the prayer whereby the jury
would have been instructed Internationally that the
demand was not sufficient and the plaintiff, there
FORE not entitled TO recover
The second and third prayers we're also properly
rejected. What Is lawful money OF the United states
other than gold and silver coin Is question OF law
which should have been referred TO tine court TO
decide and not TO the jury. Nor IL all the money
emitted by the United states made legal tender,
though authorized by law But by the second prayer
the jury would have been required to find for the
upon being satisfied that the defendant
ready and prepared and offered to pay the sum
demanded In lawful money OF the United states
other than gold and silver coin. This wholly In
admissible.
We think the court below was right In rejecting
The defendants fourth prayer. IL was IN the first
place, calculated to misead the jury as well because
Df its abstract and general character OF the i'm
preston likely to be produced by It, that II the entries
IN the books OF debit and credit were found TO be
correct all the special facts and circu instances at
lending the deposit OF the 3oth OF December, 1881,