Consol. Lumber Co. v. Fid. & Deposit Co. of Md.

SHAW, J.

Appeals are presented from the judgment and from an order denying a new trial.

Plaintiff sued to recover damages arising from a breach of duty by one C. T. Gifford, notary public, the defendant being the surety upon his official bond. Plaintiff held a note for five thousand dollars executed by L. E. Kiefhaber, and endorsed by C. F. L. Kinnear and G. H. Séaton. It was dated September 20, 1906, and was due on April 1, 1907, with interest at six per cent per annum, payable monthly. It provided that if the interest was not paid as it became due the whole amount of principal and interest should thereafter be due and payable at the option of the holder, such option to be ex

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ercised within ninety days after such default. Kiefhaber resided in Redlands. A short time before April 1, 1907, plaintiff sent the note to the First National Bank of Redlands for collection. It was not paid on April 1 and thereupon the Red-lands Bank delivered it to Gifford, as notary, to be protested. Gifford appended thereto his official certificate in due form showing a regular protest thereof by him and the sending of proper notices to the indorsers. In fact, however, he did not present the note to Kiefhaber for payment, and by that omission the indorsers were released. Kiefhaber and Kinnear were insolvent and Seaton was the only party financially responsible upon the note. The plaintiff sued him on the indorsement and was defeated in the suit and lost the debt because of the non-presentation to Kiefhaber. This action is based on said failure of Gifford, as notary, to properly protest said note.

In defense the defendant claimed: 1. That Seaton had waived the presentment to Kiefhaber for payment; and 2. That the plaintiff had exercised its option as provided in the note, and had declared it due and payable long before April 1st. Upon the first ground it claimed that no protest was necessary, and hence that Seaton was bound, notwithstanding his successful defense to the suit on the indorsement. Upon the second ground it claimed that the plaintiff itself had suffered the note to become due without protest, or demand upon Kiefhaber for payment, and thereby released Seaton. The general verdict of the jury in favor of the plaintiff implies that neither of these defenses were proved. In answer to special interrogatories the jury found that neither of them was true. It is claimed that these findings are contrary to the evidence.