48 W. Va. 289 | W. Va. | 1900
The case of the Mercantile Bank of Memphis against J. M. Boggs, from the circuit court of Clay County presents the question as to whether a pre-existing debt is a valuable consideration for the transfer of a negotiable note in the usual course of business. Judgment was rendered in the circuit court in favor of the plaintiff against the defendant for the sum of six hundred and seventy-seven dollars and sixty-seven cents.
The facts are that one Gerald M. Fennell on the 23 d day of August, 1895, obtained from J. M. Boggs, his negotiable note for the sum of ñve hundred and eighty-seven dollars, payable November 1, 1896, at the National Exchange Bank at Weston, in consideration of an insurance policy to be thereafterwards delivered, but which was never received by Boggs. This note was on the 29th March, 1896,,transferred without recourse along with other securities to the plaintiff to secure a large indebtedness owed by said Fennell, and which the plaintiff had refused to renew. When the note became due, the defendant refusing to pay the same, plaintiff brought suit. Defendant appeared, plead nil debit and filed special pleas in writing setting up failure of consideration and notice thereof to the plaintiff. Plaintiff filed a special replication admitting the failure of consideration, but denying notice of the same. There are some technical objections raised to the pleadings which are hardly worthy of consideration, as the real issue between the parties is without complication. The defendant objects to the special replication and claims the issue of failure of consideration should have been made with a general replication. This is true where the plaintiff desires to deny the failure of consideration alleged, but where ho does not wish to do so, and only seeks to controvert the plea in part, he can only do this by special replication. The evidence introduced by the defendant to sustain his plea was rejected. Of this he cannot complain as it was introduced on.a question not in issue but admitted, to-wit, failure of consideration and fraudulent procurement. The only real issue of fact between the parties was as to whether the plaintiff had notice of the failure of consideration or fraud in the procurement of. the note. On this issue the defendant offered no evidence. The question of law involved arose on the motion to reject the special replication for the reason that the plaintiff admitted therein that the
There appears nothing in the record to take this case out of the general rule as established by the decisions of the courts of England, the United States and at least twenty states. Opposed to it are the decisions of twelve states, not including Virginia and Vest Virginia. New York is irreconcilably on both sides. 4 Am. & En. En. Law (2d Ed.) 290, 293. To avoid conflict of authority with regard to questions of commercial law in this State we are compelled, and it is proper and right that we should follow the decisions of the Supreme Court of the United States, although doubtful of their justice and equity so long as they do not plainly lead us into a violation of the laws of God. As to the latter, the highest court in the land is entitled to have all doubts resolved in its favor.
The judgment, though harsh, must be affirmed.
Affirmed.