37 W. Va. 665 | W. Va. | 1893
James W. Long brought an action of debt against E. M. Campbell and others ; and upon a demurrer by the defendants to the plaintiff’s evidence judgment was rendered for the plaintiff; and the defendants sued out this writ of error.
The first point made by plaintiffs in error against the judgment is based on three alleged variances between the allegations and proofs. One of such variances is that the declaration describes a note as made to the plaintiff suing by the name of James W. Long, while the note produced in evidence is one to James Long. A middle name, or its initial, is no part of a name. Franklin v. Talmadge, 5 Johns. 84, citing Co. Litt. 3a; Rex v. Newman, 1 Ld. Raym. 562; Vin. Abr. tit. “Misnomer,” p. 6, pl. 5, 6.
For purposes of identification the middle name may be very important; as where the question is which one of two men of the same name, except that they have different middle names, or only one has a middle name, did a certaia act or was injured or sued, or the like. And I can not say that the rule is very reasonable, as a man, contrary to the idea stated in the old books that a man can have but one Christian name, may by baptism, confirmation, or otherwise take and use two as well as one Christian name; but the rule stated seems to be well settled.
I do not forget that the question in this case occurs in the description of a writing which the rule of pleading requires to be' exactly accurate; but if once we say that a middle name is no part of the name, it is as though it were left out. In Keen v. Meade, 3 Pet. 1, it was strongly intimated in the opinion that “the entire omission of a middle letter is not a misnomer or a variance.” In Milk v. Christie, 1 Hill, 102, it was held that a “middle letter in a name is no part of it, and a variance in this respect between a written contract, as set forth.in the pleadings, and that produced in evidence, is immaterial.” So in Bratton v. Seymour, 4 Watts, 329; Thompson v. Lee, 21 Ill. 242; McKay v. Speak, 8 Tex. 376. In O’Brannon v. Saunders, 24 Gratt. 138, a declaration described a judgment as against John S. Barbour, whereas it was against John S. Barbour, Jr., and it was held that “Jr.” was no part of the name, and there was no variance.
Let us grant, however, that at common law this would be a variance. Wliat then ? It is cured by the statute of jeofails. The defendants pleaded nil debet and payment. Chapter 134, § 3, of the Code, provides that “no judgment or decree shall be stayed or reversed * * * for any defect, imperfection, or omission which might have been taken advantage of on demurrer or answer, but was not so taken advantage of.” This action was upon a promisory note. If it had been based on a specialty, for this variance the proper course would have been to crave oyer of the specialty, and demur for the variance, or object to the admission of the instrument as evidence, or an instruction to the jury to disregard it, or, which is the same, striking it out as evidence. 4 Minor, Inst. 814.
But this ease was decided upon the defendant’s demurrer to the plaintiff’s evidence; and it is argued that on a demurrer to evidence the court must take notice of the variance, and disregard the bond, as if there had been such demurrer or objection to its admission or instruction to disregard it, and there had been a general verdict. The only difference is that in this case the court tried the case on such demurrer, but there was no objection to the note or variance in any form. Here stands the judgment. The statute is directed to this Court as the appellate tribunal, and if this Court would execute the purpose of the statute it
The plain purpose of the statute is that, after trial and judgment, such judgment shall not be reversed for defects which could have been used to defeat a judgment, but were not so used, to cure slips and missteps not assigned before judgment, and not entering into the essential justice of the case. In case of judgment upon demurrer to evidence there has been a jury trial, on which objection to a variance could have been made, and the only difference between such case and one without demurrer to evidence is that the verdict is conditional upon such demurrer. So I do not see why the fact that the judgment is upon demurrer to evidence should take the case out of the benefit of the statute. The party has never hinted his reliance upon the variance until he reaches the appellate court.
See what hardship and injustice would be inflicted by holding otherwise'. The party does not crave oyer, and demur, and makes no objection to the introduction of the bond before the jury. Had he done so, the other party would ask leave to amend, or suffer nonsuit; o'r if he later had doubts, after such objection, he could ask to withdraw his joinder in demurrer, and save himself from the hurt of the variance; but, in the absence of any such objection, he goes on to judgment, and then his adversary asks this Court to reverse the judgment, and render final judgment for him upon such demurrer to evidence.
But it is said that the statute cures only defects which could have been taken advantage of by demurrer, and that, as in an action upon an unsealed instrument, there need be no profert, and that craving oyer and demurring because of variance between the declaration and instrument sued upon is applicable-only to an action on a sealed instrument, and therefore the statute does not apply to such case. Literally it does not, hut it is a highly remedial statute, and ought to be liberally construed and applied to attain its purpose. Can we reasonably say that the lawmaker intended it to cure defects in an action of debt on a bond, and leave the same defects uncured in an action of debt on a note ? I think not. Shall the mere fact that technically there can
I think Judge IIamond’s opinion in Holliday v. Myers, 11 W. Va. 276, will plainly sustain us in this ruling. He properly gives the statute in question broad and liberal construction and application. Where a declaration states a case imperfectly, the statute, after judgment without objection to the defect, intends to cure it; but not where the declaration states no case at all. The opinions of Judge Lee in Kennaird v. Jones, 9 Gratt., at page 189, and in Hitchcox v. Rawson, 14 Gratt, at page 538, and of Judge MoNOURE in Boyles v. Overby, 11 Gratt. 202, in their construction of the statute, are to same effect. See Land Co. v. Karn, 80 Va. 589, 595.
If the declaration states a defective title or cause of action, though it state it well, or if it state no title or cause of action at all, neither common law nor statute of jeofails helps the judgment. If it states a 'defective title, it shows that there is no right to recover; if it states no title, the presumption is irresistible that the plaintiff could not have made out a case by proof on the trial. .But if it states a good title, but states it defectively, it is fair.to say that the plaintiff on 'the trial proved a good ease, else the jury would not have found for him, and the statute cures the defective statement. 2 Tuck. Comm. 312; Chichester v. Vass, 1 Call, 83; Fulgham v. Lightfoot, Id. 250; opinion in Laughlin v. Flood, 3 Mumf. 273.
The only difficulty is to apply the rule to particular cases. In Davis v. Miller, 14 Gratt. 19, Judge Monguee said that an objection of variance between allegation and proof might have been raised in the Circuit Court by motion to exclude evidence, but not after judgment. In Smith v. Lawson, 18 W. Va. 212, it was held that such variance can only be taken advantage of by motion to exclude the evidence or instruction to disregard it. The Court tried the
The next point of variance is that the declaration alleges that several defendants made a note, and thereby they each of them promised, etc., not saying they promised, or they each of them promised; in other words, the declaration makes the note several, while the note in evidence is joint and several. I shall not discuss the intricate question of when a contract imposes a joint, or a several, or a joint and several, obligation. Concede that the declaration states a several liability; then, the point having been in no wise made until now, after judgment, it can not avail, for reasons above stated.
The next point of variance is that the note produced draws eight per cent, interest fromits date, 28th November, 1890, while the declaration demands the debt, with interest from the 28th November, 1891. There is no misdescription of the note in the declaration, but the demand of the declaration is for a less rate of interest, and for a shorter time, than the note would call for. It is not a question of variance between the note and its description in the declaration, but a variance between the demand and the right shown. Technically the one should correspond with the other, but I have seen no case saying that a declaration in debt would be bad in demanding a less sum than the note pleaded calls for. I do not think it would.
In Hammitt v. Bullett, 1 Call 492, the declaration demanded the debt only, without interest, while the bond called for interest. The court held that the defendant shall not be allowed to object to errors in pleading which are for bis benefit, President Pendleton saying, “He bad no right to complain of it as an error, if it be one.” Similar reasons would apply where less interest is demanded than
The next assignment of error is that some of the defendants are makers and the others are not makers, but guarantors, of the note sued upon, and that a joint action can not be sustained against makers and guarantors. That legal proposition is correct. The liability of a maker is primary; that of a guarantor secondary. But we hold that the plaintiff has a right to treat these defendants all as makers, or some as makers and others as guarantors, just as he may prefer, aud sue them accordingly.
Certain ones of the defendants made the note for the purpose by it to raise money for a business enterprise, while certain others, for their accommodation, and to give credit to the note and secure the money, indorsed their names on its' back. The note was left blank as to the payee and rate of interest. They so signed and indorsed their names before delivery. The note, in this condition, was taken to Long, and he agreed to furnish the money for the note, and his name was inserted as payee, and the rate of interest was also inserted, and he furnished the money, and the note was delivered to him. He had the right to elect in what character he would treat them. He could treat some as makers, others as guarantors, or all as original promisors; that is, as makers.
In this case it is contended that it was not the understanding of the parties that they were to be liable as makers but only as guarantors, liable in default of payment by the makers. Now, there was really no such understanding, even between the makers and those who put their names on the back. The latter say they thought they were to be, or, rather, that they would be , only so bound. Their intention was to so bind themselves. Pii'st, there was then no payee’s name in the note, and any understanding between these pai’ties (there really was no understanding in the sense of agreement) would be wholly unavailing, unless communicated to Long prior to delivery of the note. As the note was when delivered, the law gave him right to treat all as makers, and he, being a party to the contract, was entitled to know any understanding, and elect to accept or refuse on such terms. Watson v. Hurt, 6 Gratt. 633; opinion in Burton v. Hansford, 10 W. Va. 481.
Even had the parties putting their names on the back of the note done so. with the distinct condition that they were to be bound only as guarantors, yet, as they delivered it to the makers, such condition would be inoperative as against Long, unless the condition was communicated to him, under well-settled principles, because of delivery to such
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