The opinion of the court was delivered by
The single question in this case is, Was the payee entitled to recover protest fees and damages? The law does not require that a promissory note remaining in the hands of the original payee shall be protested for non-payment, and neither notarial fees for protest, nor statutory damages, are recoverable, except in cases where the protest is legally necessary to fix the liability of some party to the note or bill. (German v. Ritchie, 9 Kas. 106; Woolley v. Van Volkenburgh, 16 Kas. 20.)
In the case at bar, the action was brought by the original payee; no averment was made in the petition that the note had ever passed out of the payee, or that any indorsement had ever been made thereon; and no allegation of any kind is set forth in the pleadings that a protest was necessary to fix the liability of any party to the note. The indorsements that appear to have been erased before the commencement of the action, of course cannot be taken into consideration. They do not count. Hence, the petition did not state facts sufficient to constitute any claim for protest fees, or protest â– damages, and the court committed error in admitting, against the objections of the makers of the note, testimony of transfers and indorsements.
The judgment of the district court will be modified by striking out the sum of $24.07, the costs of protest and protest damages, and the defendant in error will be adjudged to pay all the costs in this court.