The opinion
The opinion of the Court was drawn by
Appleton, C. J.
Where the parties to a note or bill of exchange live in the same town, a demand upon the maker and notice through the postoffice are not sufficient to charge an indorser. Such is the general rule.
The indorser may agree with the holder of a note, that notice of dishonor may be left at a particular place, and notice so left will be binding upon him. Mill v. Bank of U. S., 11 Wheat., 431; Eastern Bank v. Brown, 17 Maine, 356; Chicopee Bank v. Eager, 9 Met., 583 .
So a bank may establish usages variant from the general usage and not adverse to positive law, and those doing busi *53 ness with such bank and conusant of its usages, will be regarded as assenting thereto and as agreeing to be bound thereby.
The jury have found that it was an usage of the Lime Nock Bank, when parties to a note payable at its counter were residents of the city where the bank is established, to give notice of demand and non-payment through the post-office ; that the defendant for a series, of years had been accustomed to do business with the bank, and was conusant of its usages, having been for a long time one of its directors.
The larger note in suit was payable at and transferred by the defendant to the bank. By indorsing a note thus payable, he may well be presumed, knowing the usages of the bank, to have assented to and to have agreed to be bound by them. In delivering the opinion of the Court, in Gindrat v. Mechanic’s Bank of Augusta, 7 Ala., 325 , Goldthwaite, J., after referring to numerous authorities on this point, sums up the result as follows: — "We may therefore conclude, that it was competent for the bank to establish a rule that notice might be given to parties through the postoffice, although resident in the same place, and that such rule was obligatory upon the parties to all Mils expressing upon their face to be payable at that bank.”-
The instructions of the presiding Judge, so far as they relate to the note made payable by its terms at the plaintiffs’ bank, are correct.
But the note for three hundred dollars was not made payable at any bank. There is no proof that the defendant knew that it would or assented that it should be discounted by the plaintiffs. He is not the last indorser. Nor is he, by the mere fact of a prior indorsement, to be presumed to have waived, as to this note, the usual notice of demand and non-payment. Notice through the postoffice would not be binding upon him.
No question as to the sufficiency of the proof to sustain *54 the verdict arises, as there is no motion to set aside the verdict as against evidence.
Exceptions sustained, unless the plaintiffs will remit the amount of the note for $300 and interest.
Davis, Kent, Walton, Dickerson and Danfortii, JJ., concurred.