140 S.E. 8 | W. Va. | 1927
Harold M. Ward seeks a reversal of a judgment of the circuit court of Kanawha County sustaining the action of the court of common pleas in entering judgment on a verdict against him. Several years ago Ward sold a certain lot, taking in part payment from his grantees their three joint negotiable promissory notes, payable in one, two and three years after date, and retaining a vendor's lien to secure the same. Sometime after the second note of said series had become due, Ward transferred the same to plaintiff's decedent, and later released his vendor's lien. The lot has now passed into the hands of a third party. Plaintiff instituted this action in assumpsit to recover certain specific damages (the remainder due on the note held by her) alleged to have been suffered because of the breach of an alleged implied covenant contained in the written assignment whereby Ward assigned said note without recourse to her decedent. Ward contends that the declaration did not allege facts sufficient to support the damages claimed by the plaintiff.
A declaration in assumpsit which avers an undertaking on behalf of the defendant and a legal consideration therefor, a breach in failing to keep the undertaking, and an injury to the plaintiff therefrom, is generally sufficient. Hall v.Philadelphia Co.,
Reversed and remanded.