173 P. 597 | Cal. Ct. App. | 1918
The questions arising on these two appeals are identical. References to the facts and to the parties will be according to the record in Whitcomb v. Huse. The action was brought to recover on two promissory notes, Huse being sued as a maker and Woodruff as an indorser. Judgment went for the plaintiff and Woodruff appeals.
It is contended by the appellant, among other things, that the trial court erred in admitting in evidence the notary's certificates of protest of the notes sued upon and also his certificates of notice of protest. The ground of the contention is that the documents failed to comply with the terms of section 795 of the Political Code, which provides that protests, stating certain facts, including "the reputed place of residence" of the party to a bill or note and of the party to whom it was *249
given, "and the postoffice nearest thereto," are prima facie
evidence of the matters stated in them. Both of the instruments which were received in evidence are to be considered together in determining whether the "protest" is so complete in its subject matter, under section 795, as to make it prima facie
evidence of the matters stated in it (Kellogg v. Pacific BoxFactory,
In order properly to determine the applicability of the Kellogg case to the present question, it is necessary to refer to section
"A notice of dishonor may be given: *250
"1. By delivering it to the party to be charged, personally, at any place; or,
"2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him; or,
"3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the postoffice most conveniently accessible from the place where the presentment was made, and paying the postage thereon."
It will be noted from the text of the Kellogg case that notice of dishonor was there given, under the alternative allowed by the second subdivision of section
The judgments are reversed.
Conrey, P. J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 11, 1918. *251