143 S.E. 305 | W. Va. | 1928
This is a notice of motion for judgment by the holder of a negotiable promissory note against the maker thereof. Upon a judgment of the circuit court of Raleigh county for plaintiff, defendant brings error.
The note was made to "Lyda Ridinger" and on the back thereof contains the following endorsements: "Lyda Ridinger, by C. F. Lyda", and below, "C. F. Lyda". The notice, which fully describes the note, was accompanied by a statement of account and the statutory form of affidavit. Defendant filed his counter affidavit, denying that there is any sum due from him to plaintiff, and was also permitted, over objection, to file two special pleas, duly sworn to, the second of which denied plaintiff as owner of said note and averred that the same had not been endorsed and transferred to him by any authority whatever. A plea of non-assumpsit was also interposed. Plaintiff replied generally.
Plaintiff was the only witness introduced. He stated in effect that he had examined the note; that he was the owner thereof; that he had purchased the same for value before maturity; and that he had no notice of any infirmity or defect in the same at the time he purchased it. This, together with the introduction of the note itself, was all the evidence taken on the trial. Each of the parties moved the court to direct a verdict in their favor. The court overruled both motions, and thereupon the defendant demurred to the plaintiff's evidence, on which demurrer, upon the verdict of the jury, the court rendered judgment for the plaintiff.
It is contended that the notice is insufficient in this, that it does not set out the amount for which judgment will be asked. While this is true, the notice does set out in full the note declared on, and to such notice was attached a statement of account and an affidavit in which the exact amount due on said note was shown. This is sufficient. Anderson v. Prince,
It is maintained that the second plea puts in issue the question of the plaintiff's title to the note sued on. Ordinarily without the plea of non est factum or its equivalent
putting in issue the validity of the instrument sued on, possession thereof, *525
and the offer of it in evidence, constitutes prima facie
evidence that the plaintiff is the holder in due course without notice of anything impeaching its validity. Bank v. Bank,
Mere possession by a third person of an unindorsed negotiable instrument, payable to the order of the payee therein named, is not even prima facie evidence of legal title in the holder as such payee. Bausman v. Kelley,
This leads us to the next question as to the burden of proof. The validity of the endorsement is challenged by verified plea. In such case, we have held that proof of the execution and negotiation of the notes was essential to their enforceability.Williams v. Insurance Company, supra. In the absence of a special statute requiring a sworn plea, a denial of the endorsement is generally held sufficient to put in issue the title of an endorsee or assignee. Berry v. Barton,
Judgment reversed; verdict set aside; new trial awarded.