42 W. Va. 416 | W. Va. | 1896
Miller brought an action upon a negotiable note made by Clendenin, payable to Miller, on the back of which Barbee and Mossman wrote their names, in which action the court gave judgment against Clendenin, but discharged Barhee and Mossman. Miller appeals.
Miller, the payee, did not put his name on the note, and, Barbee and Mossman having indorsed their names on it before delivery to the payee, the law is settled that Miller had the right to treat Barbee and Mossman as joint makers with Clendenin, indorsers, or guarantors, just as he chose, unless there was an agreement between Miller and them to hold them as indorsers. Hansford v. Burton, 10 W. Va. 470; Long v. Campbell, 37 W. Va. 666 (17 S. E. 197); Milling Co. v. Watkins, 41 W. Va. 787 (24 S. E. 612). It is claimed, however, that there was such agreement, not pointed or express, but that an understanding existed, tantamount to an agreement, that Barbee and Mossman indorsed as indorsers, and were to be notified of non-payment, and they were not notified, and so are not liable. The evidence is utterly inadequate to show such an understanding as will relieve them. Clendenin asked Miller to lend him two hundred and fifty dollars and Clendenin says, in evidence, “My recollection is that he told me I could have the money, if 1 could get indorsers or security — I don’t remember which.” Clendenin asked him if he would take Barbee and Mossman, and he said that he would, but they must sign as individuals, not as a firm, they being partners. That is- all that
The judgment is reversed, and judgment given against all three defendants.