89 W. Va. 111 | W. Va. | 1921
The first question presented is whether the court below erred in overruling Gump’s motion to quash the notice for judgment against him as endorser upon the note of N. P. Clark, payable to and endorsed by him to Hastings, for $925.12.
The ground of Gump’s motion to quash went to the right of plaintiff to recover and not to the sufficiency of the notice as process to answer the complaint, in that it was not alleged that the note ivas on the day of maturity presented for payment at the Exchange Bank of Mannington, W. Va., and notice of its dishonor given him, or waiver by him of such notice, so as to render him liable as endorser.
In our practice the notice of such motion, given pursuant to the provisions of Chapter 121 of the Code, serves the double purpose of process and declaration or pleading. Security Loan & Trust Co. v. Fields, 110 Va. 827, 67 S. E. 342. As process in this case the notice is not challenged; its substance is, and it is claimed it does not state a good cause of action against Gump, endorser on the note. It is contended, however, that the statute, intended to give a speedy and summary remedy, is to be viewed with indulgence, and that strict rules of pleading should not be applied. While this is true, the rule can not be carried to the extent of exempting the pleader from stating the facts necessary to show a good cause of action against the defendant. Shepherd v. Brown, 30 W. Va. 13, 21; Anderson v. Prince and Others,
To render an endorser liable on such a note, tbe statute, Chapter 98A Code, requires presentment and notice of dishonor. Thompson v. Curry, 79 W. Va. 771; Rusmissel v. White Oak Stave Co., 80 W. Va. 400; Deming National Bank v. Baker, 83 W. Va. 427, 98 S. E. 438.
In the case at bar the notice does sufficiently connect the defendant Gump with the note, as endorser, and conditionally liable thereon. But his liability was only conditional, and depended on the due and proper presentment of the note at the time and place of payment, and notice'to him of the dishonor thereof, or waiver of notice, which are not challenged, and the cause of action against him is inadequately pleaded. Security Loan & Trust Co. v. Fields, (Va.), supra. It was so held also in Galbraith v. Shepard, 43 Wash. 698, 86 Pac. 1113.
We reverse the judgment; and the motion to quash, treated as a demurrer to the imperfect pleading, is sustained, and the case remanded, with leave to plaintiff to amend the pleading if so advised, with costs to plaintiff in error in this court.
Reversed and remanded.