182 S.E. 780 | W. Va. | 1935
This action involves the liability of one who assigns a notewithout recourse. The plaintiff is the assignee of the note and the Bank of Cameron is the assignor. The plaintiff apprised the receiver of the Bank by a notice in writing that a motion for judgment on the note against him would be made in the circuit court of Marshall County. A demurrer to the notice was overruled and its sufficiency certified here.
The notice alleges that for value received the Bank of Cameron assigned to the plaintiff in November, 1927, without recourse, a demand note of Aleppo Township in the State of Pennsylvania, dated July 30, 1927, and payable to and at the Bank; that the note was executed by three named individuals, signing as supervisors of the Township; that during 1930 the plaintiff made several fruitless demands of payment at the Bank; that afterwards he sued the Township on the note in the common pleas court of Greene County, Pennsylvania, where he was denied judgment (in July, 1934), on the ground *654 that the note was not executed in conformity with the constitution and the laws of Pennsylvania and was invalid; and that he then demanded payment of the note of the receiver of the Bank, which was refused.
The demurrer itself lists a number of points against the notice, but demurrant's brief relies upon only "three principal points," which for the purpose of this opinion are discussed under two, as follows:
1. The demurrant contends that the Bank is not liable on the note because the assignment was made without recourse, and if not for that reason, because the plaintiff has not exhausted his remedies for recovery against the Township.
The Negotiable Instrument Law, Code 1931, 46-5-6, provides that a person negotiating a note by a qualified indorsement, nevertheless warrants "That the instrument is genuine and in all respects what it purports to be." This warranty engages that the instrument assigned is valid. Institute v. Siers,
The demurrant raises the two questions, (a) whether or not the note is made by the Township or by the three individuals who signed as supervisors of the Township, and (b) the ultimate right of the holder of the note to recover of the Township in assumpsit for money had and received under such decisions asOhlinger v. Township,
(a) The law of Pennsylvania seemingly requires no special formality in the execution of the note of a township (see Pennsylvania Statutes, sec. 6470, and Georges Township v. *655 Trust Co.,
2. The demurrant further contends that if he is liable on the note, assumpsit and not notice of motion for judgment is the proper remedy. He relies on such cases as Schaffner v. SupplyCo.,
In connection with this point demurrant's brief raises the statute of limitations. The brief rightly contends that the alleged breach of warranty arose immediately upon the transfer of the note in November, 1927. Bigelow on Bills, Notes, etc. (3d Ed.), sec. 291; Wood on Limitations (4th Ed.), sec. 144a; 37 C. J., subject Limitations, secs. 186, 190. The brief then relies on Bank v. Spates,
Accordingly point 3 of the syllabus in Bank v. Spates, supra, (holding that the limitation in such case is five years) is disapproved.
The ruling of the circuit court is affirmed.
Affirmed.