5 Kan. 34 | Kan. | 1869
By the Court,
The first question to be passed upon in this case is: whether the plaintiff in error is the real party in interest.
Parties : He is stated in the iietition to be “ the legal owner and holder of said note ” and this is in no way either directly or by implication denied by the answer and must be taken as true. It would be manifestly improper to hold the plaintiff bound by any evidence that might by some oversight be introduced in the case, when he had had no notice that it would be attempted and he wholly unprepared for it, under the pleadings as they stand and for all purposes to be affected by them, the plaintiff in error must be taken conclusively as the real party in interest and having the right to bring his action on it. It is to be taken as a fact, not disputed or disputable. It being admitted by the pleadings is not in issue nor the subject of testimony, and any testimony appearing is not the subject of judicial investigation.
The facts of the case, as shown by the testimony, are briefly these: The firm of Watt Brothers had been doing business as a firm in Lawrence, but had closed up their business previous to the maturity of the note; W. A. Watt lived in Wakarusa township, outside of the city, and about two miles and a quarter from it; D. Gf. Watt lived in Lawrence at the same place where he had resided since 1864. The notary, Mr. Hadley, who made the protest of the note testified that when he protested the note he made inquiries at the late place of business of Watt Brothers, and was told by a young man there “ that he could not tell where the Watt Brothers lived, but thought that one, or both, had moved out of town into the country.” He also inquired of the plaintiff and of one of the makers of the note, and neither of them were able to tell him where either of the brothers lived; he also made inquiries of other business men, and from all his inquiries could not learn where the Watt Brothers resided, except that he learned, that “ one of them had moved from the city and town,” and the other also. He inquired at the post office and learned that the. Watt
The maker of the note, of whom he inquired, was one of the firm who bought out Watt Brothers, and he said he did not know that they lived in town, or where they lived; witness knew that they both had once lived in town, but had understood that both had removed. The defendant, D. G. Watt, testified that at the time of the protest of the note he lived on the northwest corner of Ohio and Henry streets, in the city of Lawrence, at the same place where he had resided since 1864; that he knew the notary, Mr. Hadley; that Mr. Hadley had seen him at his house, and that only a short time before the note became due he had spoken to Mr. Hadley from his house; that he was on the street on the 5th, 6th and 7th days of September; was engaged in settling up business and arranging to build in the county. W. A. Watt testified that he got the notice from the post office on Sunday the 8th; that he called at the post office on the 6th, and there was nothing for him. It appears from the envelope that the post-mark was on the 6th, and the postmaster testified that it was the general custom of the office to stamp the drop letters four or five times a day and that a letter put in on the 4th should have been stamped of that date, or at least of the 5th.
The cause was tried by the court below, a jury being waived and all the evidence spread upon the record. There was a general finding for the defendants, Watt
Protest: Diligime*. As to the first cause: Was there reasonable diligence on the part of the notary?
It has been too often settled on well established principles to need elucidation here that in a case, such as this, if there be conflicting testimony, this court will presume that the court below, in weighing the evidence, having had the opportunity to see the witnesses — to observe their manner and bearing — has given the preference to that testimony that wfill support the findings of the court; and that this court will not disturb such findings any more than they will those of the jury in a like cause.
Looking at the evidence in this light, and it appears that the notary knew that the Watt Brothers had been doing business and residing in Lawrence; knew where one of them had resided but recently before the protest, but acting upon the impression that they had moved away — for it appears that none of those of whom he made inquiry, and who are mentioned by name or discription in his testimony, pretended to know that both of the brothers had left town; so, as observed, acting under this impression, he prosecuted his inquiries with sufficient diligence and to a reasonable extent; but it seems to us that he ought to have been certain that they had moved away, or visited the residence wffiere he had
pbotest-notice"^s As to thesecond point: we apprehend it is good law that a service of notice of protest upon one member of a firm who endorse the note or bill is sufficient service to hold the firm bound, but cannot admit the right to give notice to a person abroad and omit the party at home. On principle, it would violate the entire object of the notice, if the party protesting in
We do not decide whether a notice sent by mail in this case would be good against W. A. Watt, were he the sole endorser. The authoi'ities are most numerous in support of that view. See the Bank of Columbia v. Lawrence, 1 Peters, 578; Bell v. the State Bank, 7 Blackford, 460; 5 id., 447; 1 Parsons on Notes, 483; and contra, see Ireland v. Rip, 10 Johns., R., 492.
But it is not necessary to decide that point — because with our view of the case it was obligatory on the party, giving the notice, to give it to the party in town.
The decision of the court below must be affirmed.