70 W. Va. 576 | W. Va. | 1912
The decree is a final one perpetually enjoining an action at law. The law suit was instituted by Massillon Engine & Thresher Company against Knutti and Mylius on notes executed to that company by them for the purchase price of a saw mill, engine and boiler. The three notes involved in this case are the last ones falling due in a series executed in that behalf. In a prior action between the same parties, judgment on the other notes was recovered and at least partially collected. But the action on these last due notes was met by an injunction based on a bill in equity alleging total failure of consideration as to them growing out of worthlessness of the machinery. The bill also maintained that Mylius signed the notes as surety only, and that the company, by exchanging engines with Knutti without the consent of Mylius, partially released the lien of a deed of trust that had been given on the property as additional security for the payment of the purchase price, so that Mylius as surety was discharged from obligation.
"We need not extensively consider the record that has been made in this injunction case. The demurrer to the bill should have been sustained and the bill dismissed. The matters alleged in the bill do not warrant the interference of an equity court with the law action. Both of the defenses to the notes relied on in the bill are cognizable at law. They furnish no grounds for transferring the litigation to the equity forum. Pleas of total failure of consideration and of discharge of a surety by the act of the creditor, as to unsealed instruments, are pleadable, and triable as defenses to an action at law. The law court has jurisdiction to try the ease presented by plaintiffs bill. The defenses to the notes on which the bill is based are legal ones. No purely equitable defense is urged. No ground justifying equity cognizance is shown.
It is insisted that Code 1906, ch. 126, sees. 5 and 6, justifies this attempted resort to equity, and that those sections give the right to go into equity regardless of an action or judgment at law, since failure of consideration is one of the defenses relied on. Those sections do not mean that a case may be carried from the law court into equity simply because it involves one of the
Without the statute Mylius is not entitled to relief in equity against these last due simple promissory notes for the purchase
Perhaps we should emphasize the fact that the bill relies on a total failure of consideration as to unsealed notes for a basis of equity jurisdiction. It does not set forth a mere partial failure of consideration; but it shows that beyond the purchase money already advanced the consideration for the debt represented by these last notes has wholly failed. It seems that at common law there was resort to equity for failure of consideration in part, even as to parol contracts. Fisher v. Burdette, supra, at page 629; Bias v. Vickers, 27 W. Va. 456. An adjustment of damages or set off was demanded which, as the practice then was, the law court could not adequately meet. Evidently, however, Mr. Minor did not so view it. 4 Inst. (3rd ed.) 793. But certain it is that at common law a total want or failure of consideration as to parol contracts could be shown under the general issue of non assumpsit or nil debet. 4 Minor’s Inst. (3rd ed.) 770. A total failure of the consideration affords a complete bar to an action on a simple contract and can be shown at law. See the authorities cited and quoted in this particular by Judge HaymoND in Black v. Smith, supra. Prior to the enactment of Code 1906, ch. 126, secs. 5 and 6, equity had no general or peculiar jurisdiction on the ground of failure of consideration which that statute preserved to a defendant. It
We observe that the decision in Jarrett v. Goodnow, 39 W. Va. 602, is not in accord with the prior holding in Black v. Smith, supra, to the effect that Code 1906,. ch. 126, secs., 5 and 6, gave equity no enlarged jurisdiction. Hor is it in accord with the recent decision in Prewett v. Bank, supra. A discriminating review of the subject leads to our approval of the application of this statute as made in the two last named cases.
One of the defenses asserted by Mylius — that he was discharged as surety by the act of the creditor in releasing a security for the debt; — can have no relation to the statute cited and relied on as affording equity jurisdiction. As related to notes not under seal, it is clearly a defense cognizable at law. It can in no light justify a necessity of resorting to equity. Parsons v. Harrold, 46 W. Va. 122; Glenn v. Morgan, 23 W. Va. 467.
The decree will be reversed, the injunction dissolved, the demurrer to the bill sustained, and the bill dismissed.
Reversed and Dismissed.