This is a question of legal diligence, in the presenting of a check, in the city of New-York. Did the plaintiffs do all that the law merchant required of them 1
The plaintiffs do not pretend, that they pursued the exact steps of the law ; but they rely on a usage or practice of their bank, as a waiver or excuse for such omission. This practice they say, (and the jury have so found,) was known to the defendant, at the time he left the check with them ; and they therefore claim, that the usual rule is not to govern in their case.
No principle of law is better settled, than that a known practice, or one belonging to a particular branch of business, is sufficient evidence of the understanding of the parties, when contracting in relation to that business, unless there be evi*140dence to the contrary. It was recognized, by this court, in Halsey v. Brown & al. 3 Day, 346. Barber v. Brace, 3 Conn. R. 9. Kilgore & al. v. Bulkley & al. 14 Conn. R. 363., and is to be found in cases without number. The Paragon, 1 Ware, 323. The Schooner Reeside, 2 Sumn. 567. Dwight v. Whitney, 15 Pick. 179. Gibson v. Culver, 17 Wend. 305. Renner v. Bank of Columbia, 9 Wheat. 588. & seq. Clark v. Baker, 11 Metc. 186. 1 Smith’s Lead. Ca. 18. Bodfish v. Fox, 23 Maine [10 Shep.] 90.
Had the defendant, at the time he got his check cashed, agreed with the plaintiffs, that they might retain the check, instead of forwarding it by the mail of the next day, until Thursday, unless, by the accumulation of paper, they should think it proper to send at an earlier day, and when they should send, it might be by the captain of the steam-boat, rather than by the mail; would not this agreement be good ? Would it not be reasonable 1 Could the defendant be permitted to disregard it, and insist that the law had provided a different and more reasonable rule ? Such, we think, is the claim of the defendant. The judge instructed the jury correctly, when he told them, that the practice was sufficient evidence of an agreement not to insist upon the usual rule of the law.
The defendant has endeavoured to show, that this practice is unreasonable, and that when tested by the rules applicable to customs, it is fatally bad. We do not agree, that this practice is bad, or exceptionable, in any point of view whatever; nor that it is obnoxious to the objections urged with such earnestness by the defendant’s counsel. However ; we do not think it correct to apply any such test. The special praciice of this bank has but little analogy to the customs of England, which have been commented upon, with such ability and learning. We are not now enquiring after the law, or any custom, as a rule of law, but after the understanding and agreement of the parties. In this point of view, the cases read by the defendant’s counsel, have no importance. Had the contract, as claimed by the plaintiffs, been made in explicit terms, we should have heard nothing about its want of the requisites of a good custom.
Nor was there improper delay in New-York. The check reached that city, on the evening of the 4th. It remained in *141the hands of the captain that night, just as it might have remained in the post-office, and reached the Bank of New-York,the collecting agent, on the 5th. It was understood, on the trial, that this bank, as well as the others in that place, closed its door before night, and long before the check reached New-York, on the 4th ; and further, the jury find the check reached the Bank of New-York, in the regular course of said boat, on the 5th. The captain was not an attorney for collecting the check, but an agent to transmit it. He discharged his duty, with the usual diligence ; and the New-York Bank, whether it received the check early or late on the 5th, had until the 6th to present it for payment.
A question has been made, in this court, although not stated in the motion, yet admitted to have been made at the close of the trial below, as to the rate of interest to be allowed; whether six per cent, the interest of Connecticut, or seven per cent., the interest of New-York. The plaintiffs claim, that they were to have their money in New-York; that the contract was, by its terms, to be performed there ; that they are entitled to the benefit of the principle, that the law of the place where the contract is to be performed, shall govern in the construction and extent of its obligations; and further, that as the plaintiffs could recover of the makers of the check seven per cent., the defendant is a guarantor of that obligation, and is, indeed, a second drawer of the check, and should pay the plaintiff's just what they are entitled to recover on the face of the check. On the other hand, the defendant says, the check is not in terms payble with interest; so that interest can be recovered only by way of damages ; and that this contract of indorsement is an original contract, made in Connecticut; and that for its breach, six per cent, only shall be allowed in the computation of damages. It is not quite certain what the practice is among merchants in this state, in such a case ; but the court believe it is, to pay six per cent. only ; and under that impression, the court adopt that rule. My individual opinion is otherwise. From the best enquiry I can make, I find no settled practice ; and as to principle, the reasons already urged, lead me, on this point, to differ from the court.
If the plaintiffs will deduct from their verdict one per cent., the judgment can stand; but otherwise, we advise a new trial.
*1421° this opinion (with the exception above stated,) the other concurred.
New trial to be granted nisi.