
    Humboldt State Bank, v. W. L. Rossing, Appellant, and O. S. Oleson and T. A. Hallanger.
    
    1 2 3 Suit Against Indorser: estoppel. Defendant was the payee of finóte which, as to indorsers, waived presentation, notice of nonpayment, protest and notice of protest. He indorsed it in blank. The indorsee took a note in renewal which had some forged sig*natures. It had no reason to suspect the forgery or means at' hand to determine genuineness. It brought suit on the renewal’ note six months after its maturity. Three months later, being: then convinced of the forgery, it amended, asking judgment against the indorser on the original note, which was surrendered' to its maker when the renewal was taken. Held, there was no negligence estopping a recovery against the indorser.
    
      Appeal from Humboldt District Court. — IIon. Lot Thomas, Judge.
    Thursday, May 23, 1895.
    Plaintiff states as its cause of action, in substance, as follows: That the defendants Hallanger and Oleson made their two promissory notes in writing, payable to defendant W. L. Bossing, or order, six months after ■date, with eight per cent, interest, one note being for fifty-two dollars and fifty cents, and the other for one hundred and five dollars. That said notes con • ■ tained a stipulation that the indorsers waived presentation for payment, notice of nonpayment, protest, and notice of protest, and diligence in bringing suit against any party thereto; that before the maturity of said notes the defendant Bossing indorsed the •same to plaintiff for value; that on the twenty-second •'day of January, 1892, the defendant Hallanger, to renew said notes, with two others held by plaintiff ■against him, delivered to plaintiff another promissory note in writing, for two hundred and eighty dollars and twenty-five cents', due ninety days 'after date, with ■eight per cent, interest, signed by said F. A. Hallanger, and purporting to be also signed by the defendants 0. •S. Oleson, 0. Oleson, and Martin Monson; that the signatures of O. S. Oleson, G. Oleson, and Martin Monson, on said note, were forgeries made by the defendant Hallanger; that, believing said signatures to be genuine, the plaintiff took said note in renewal of the two notes sued upon and said other two notes, and canceled and surrendered to said Hallanger the two notes sued upon; that no part of said notes in suit has been paid, and that defendant Hallanger, is insolvent. Wherefore, plaintiff prays that the cancellation of the two notes sued upon be canceled, and that he have judgment thereon against the makers, and against the ■indorser W. L. Bossing, for one hundred and twenty-six dollars and twenty cents, with interest, costs, and attorney’s fees. The defendant Hallanger did not answer. The defendant O. S. Oleson answered, alleging that his signature to both of the notes sued upon .'is a forgery. Defendant Bossing answered, stating as Ms defense, in substance, as follows: That in taking said forged note in renewal the plaintiff was guilty of inexcusable negligence, and was negligent in not sooner ■claiming that said two hundred and eighty dollars and twenty-five cent note was not genuine, and that •defendant was liable on the canceled notes; that' at the time of said renewal said Hallanger was solvent, .and defendant could have indemnified Mmself if claim had been made against him; that Hallanger is now insolvent; and that, by reason of said neglect of the ■plaintiff, it is estopped from now asking a judgment against the appellant. He alleges as further defense that he was the agent of the plaintiff for the purpose of loaning out money; that the notes sued upon were taken from Hallanger for money of the plaintiff loaned toi Mm through the defendant as such agent; that the agreement was that he should take notes for such loans to himself, and indorse them to the plaintiff; and that he should not be held liable upon such indorsements. • The cause was tried to the court, and judgment rendered in favor of the defendant O. S. Oleson, and against the defendants Bossing and Hallanger for the amount asked in the petition. The def endant Bossing appeals.
    
      —Affirmed.
    
    
      R. M. Wright for appellant.
    
      
      P. Finch for appellee Humboldt State Bank.
    
      Botsford, Healy & Healy for appellee 0. S. Oleson.
    
      
      The figures on the left of the syllabi refer to corresponding figures placed bn tfc* margin of tbe case at the place where the point of the syllabus id decided.
    
   Given, C. J.

I. The following are the facts as conceded!, or fairly established by the evidence: The notes in suit were taken by appellant from the defendant HaiHanger on account of dealings between them, and not for money loaned by the plaintiff to Hall-anger through defendant a® its agent. Said notes were indorsed by appellant to the plaintiff without any agreementlimiting his liability as indorser. The signature, “O. S. Oleso-n,” appearing to said note, is a forgery, but that fact was unknown to appellant at the time he indorsed the notes to plaintiff. Plaintiff received' the two hundred and eighty dollars and twenty-five cent note in renewal of the notes in suit and the two other notes of Hallanger; .believing the signatures of O. S. Oleso-n, O. Oleson, and Martin Monson thereto to be genuine, while in fact they are forgeries. Within a reasonable time after learning that the genuineness of said signatures to the two' hundred and eighty dollars and twenty-five cent note was questionable, plaintiff proceeded to assert its rights under the notes in suit, and the indorsements; thereof. Appellant's contention is that the bank was negligent in not discovering these forgeries, at the time it took the renewal note. We do not think the evidence sustains this contention. No reason appears why -the plaintiff's officers should have suspected -the forgery, nor does it appear that they had the facilities for determining by comparison, the genuineness of the signatures. The court below found — and correctly, w-e think — that the signatures, “O. S. Oleson,” to the notes in suit, were forgeries; and, while there is much testimony based upon comparison of signatures; there was nothing at the command of the bank at. the time the renewal note was taken to cause it to suspect, much less to know, of the forgeries that Hallanger had committed. The bank exercised' usual care in taking the renewal note.

It is contended that the bank was negligent in not sooner notifying the makers of the renewal note to pay the same. That note was not due until April 22,1892, and this action was brought November 5, 1892. It was originally brought upon the renewal note; plaintiff evidently then not being convinced that it was a forgery, but afterward, being so convinced, did, on the thirty-first day of January, 1893, amend its. petition so. as to claim as already stated. iWe do not think there was any siuch negligence on the part of the plaintiff, either in receiving the renewal note, or in asserting its rights upon the notes in suit, as should estop it from now demanding judgment against appellant upon the indorsement. As already stated, we think the evidence fails to establish appellant’s allegation that the notes in suit were taken for money of the plaintiff loaned through him as agent, or that he indorsed the notes in pursuance of any verbal agreement limiting his liability as indorser. Numerous questions are discussed, but the only reasons urged why appellant is not liable upon his indorsement.are that the plaintiff is estopped by its negligence, and that (his liability as indorser was limited by parol agreement. We do not think either of these defenses is established, and our conclusion is that the judgment of the district court should be. affirmed.  