17 Kan. 622 | Kan. | 1877
The plaintiff in error was indorser of a promissory note; and the only question in the case is, whether the findings show such notice of protest as will make him responsible to the holder. The testimony is not preserved, and the case stands alone upon the pleadings and findings. The only finding which bears upon the question of notice is this:
“4th. That upon the same day the said notary placed in the post-office in the city of Fort Scott, Kansas, in an envelope, postage paid, which envelope was addressed as follows: ‘J. H. Couch, City,’ a notice, the contents of which he does not remember.”
Does this finding show notice of protest? and such a notice as will bind the indorser? We think not. It was the duty of Sherill, as plaintiff, and holder of the note, to prove that notice of protest was given to the indorser. There is no presumption in favor of the action of the notary, as official action, because it is no part of his duty as notary to serve notice. If he serve any notice, it is as agent of the holder, and not as notary. Hence, the finding as to notice is to be treated as though notice had been served by the holder. Now, what notice was served? Who1 can tell from these findings ? It does not even appear to have been a notice of protest. It may. have been, for all that the finding shows, as counsel <fcr plaintiff in error suggest, a notice about patent medicines. We cannot presume that the notice given was a notice of protest, and also that it was a sufficient notice of protest to charge the indorser.
As the case stands upon findings of fact unquestioned by plaintiff or defendant, we must reverse the judgment, and remand the case with instructions to enter judgment upon the findings in favor of the plaintiff in error, defendant below.
