13 S.D. 329 | S.D. | 1900
Plaintiffs owned a note payable, according to its terms, on Sunday, December 1, 1895. Shortly before that date it was left at defendant’s bank, and was protested for nonpayment on Thursday December.5th. In an action against an indorser this court held that it should have been presented and protested one day earlier. Morris v. Bailey, 10 S. D. 507, 74 N. W. 443. Plaintiffs now charge defendant with having negligently omitted to make presentment.and protest in time, and seek to recover the balance due upon the note. The court below directed a verdict for defendant, and denied an application for a new trial, and plaintiffs appealed.
It is alleged in the complaint ‘ithat shortly prior to the 1st day of December, 1895, and a fe;v days before the maturity of said note, these plaintiffs delivered said note to the defendant bank for collection, with instruction to protest said note in case of nonpayment of'same at maturity, and to give all necessary and proper notice to charge the indorser on said note.” This allegation is supported by the positive testimony of one of the plaintiffs. It is denied by the answer, and defendant offered evidence tending to prove that its book-keeper, a notary public, and not itself, was employed by plaintiffs to make the presentment and protest. It cannot be presumed that the verdict was directed upon this issue, as the evidence touching it is, to say the least, conflicting, and the cause should have been submitted to the jury, unless for other reasons the plaintiffs could not recover. Assuming that defendant, and hot its book-keeper, was