88 W. Va. 552 | W. Va. | 1921
Plaintiff brought this suit in the circuit court of Cabell county to recover the amount of a negotiable promissory note executed by- the plaintiff, which resulted in a judgment in' favor of the defendant, to review which this writ is prosecuted.
Sometime prior to July, 1916, Tangiers Manors Corporation became the owner of a tract of land on Long Island in the State of New York which it proceeded to lay off into lots, and put upon the market. It appears that all of the purchase money was not paid for the property, and that a mort
It appears that when Quinby, Parrish, Diffenderfer and Ger-wood secured the notes from the Huntington people, including the defendant, they, or some of them, took them to Richmond and endeavored to have the trustee in the million dollar mortgage release the land proposed to be sold to the Huntington people upon delivery to the said trustee of sufficient of these notes to cover the release price in lieu of cash or the bonds secured by the million dollar mortgage. The Virginia Trust Company, one of the trustees, refused to execute this release upon the delivery of the notes, but required that before doing so it receive bonds of the Tangiers Manors Corporation or cash. The Tangiers Manors Corporation then, through Parrish and his associates, entered into negotiations with the plaintiff, through its secretary- and treasurer, who was also secretary and treasurer of the Tangiers Manors Corporation, to secure sufficient of the bonds to deposit with the Virginia Trust Company to secure the release desired. Hawes says that he was anxious to assist the Tangiers Manors Corporation in making sales of its property, and after making some inquiry as to the solvency of the makers of these notes, he agreed that he would turn over sufficient of the bonds held by the plaintiff in this suit to secure the release desired, and would at the same time endorse these notes, including the note of the defendant, in the name of the plaintiff, and let the same be delivered to the trustee along with the bonds, with the understanding that if the notes were paid at maturity the money thus ^collected would be substituted for the bonds, and the bonds returned to the plaintiff. The Virginia Trust Company agreed to make the release upon these conditions. Halves then endorsed the notes with the name of the plaintiff, and the same, together with $27,000.00 of the mortgage bonds, were delivered to the Virginia Trust Company, and a release of the mortgage executed1 so far as it was a lien upon the lands proposed to be sold to the Huntington people, the understanding being as shown by the testimony of the trust company’s officer, that in case these notes were paid at maturity the trust company would substitute the money thus col
There is no dispute as to any of the material facts. That the defendant executed and delivered the note to Parrish with the understanding that it should not be used until he had examined the property and was satisfied therewith; or, in case of his dissatisfaction, that the same should be returned to him, is conceded; that the note was used in violation of this agreement is likewise conceded; that the Tangiers Manors Corporation, through its agents, agreed to conduct the defendant to the property for an examination thereof, and for an examination of its affairs at its expense, is likewise admitted; and that it, through its agent, postponed this examination from time to time, and finally disappeared from the scene of the operations without complying with its undertakings, is proven, and not denied, and from this fact it may fairly be inferred that it never was intended from the beginning that the defendant should have any opportunity of making an examination of the company’s property and affairs, and that these delays and postponements from time to time were for the purpose of enabling the Tangiers Manors Corporation to dispose of the notes and get them in the hands of4 a party who had not participated in the fraud. It may, therefore, fairly be assumed that the Tangiers Manors Corporation, through its agents Parrish, Quinby, Diffenderfer and Gerwood, perpetrated a fraud upon the defendant in the use made of this note in violation of the agreement upon which it was delivered. It is shown that Parrish and Diffenderfer were both within the jurisdiction of the court, and could have been brought to testify as witnesses in the case if the statements made by Pleron and Ferguson in this regard were not correct, but the
The sole contention of the plaintiff is that while the Tangiers Manors Corporation did perpetrate a fraud upon the •defendant, it cannot he charged therewith, and that it is entitled to recover upon the note sued upon, upon the theory •that it is a bona fide; holder thereof for value in due course, and is not affected by any fraud or any equities which existed ■between the defendant and the Tangiers Manors Corporation. It 'also asserts that this note was not given by Heron to the 'Tangiers Manors Corporation, but was given to the Surry ■Realty Company, a West Virginia corporation, in payment for ■stock subscribed for by Heron in that company, and was by the Surry Realty Company turned over to the Tangiers Manors Corporation as part payment for the land purchased by the Huntington syndicate. This Surry Realty Company was chartered by the State of West Virginia several weeks after this note was given and delivered to Parrish, and it was a •corporation organized by the Huntington syndicate simply for the purpose of holding the title to this real estate when the purchase was consummated. No stock therein was ever issued to Heron, and no meeting aside from the organization meeting was ever held, and Heron was not present at that meeting. The contention that the Surry Realty Company had any dealings with the Tangiers Manors Corporation by which this note was passed to the latter company cannot be sustained, for the very sufficient reason that the Tangiers Manors Corporation had secured this note long before the Surry Realty Company ever had any existence. It is quite clear that the Surry Realty Company was organized for the purpose, and for the purpose only, of meeting the convenience of the Huntington purchasers in handling the property, and it had no connection with the sale made by the Tangiers Manors Corporation. It is true the deed, when it was made by the Tangiers Manors Corporation, was made to the Surry Realty Company, but this was long after the transaction had been completed. There is nothing in the contention, therefore that this note was given to the Surry Realty Company in payment for stock subscribed for by Heron and issued by
The principal contention of the plaintiff is, however, that while the Tangiers Manors Corporation may not have been a bona fide holder of the note while the same was in its possession, the Virginia Trust Company, the trustee in the deed of trust, did become such bona fide holder when the same was turned over to it under the circumstances above indicated, and that inasmuch as the plaintiff received this note from the Virginia Trust Company, an alleged bona fide holder thereof in due course, it holds the same without being charged with any equities or fraud between the maker and the original holder, the Tangiers Manors Corporation, notwithstanding said note was delivered to it long after it was due. As to-whether the plaintiff taking this note after its maturity from the Virginia Trust Company would be affected by the fraud on the part of the Tangiers Manors Corporation in the transaction, were the Virginia Trust Company a bona fide holder for value in due course, we need not determine upon the view we have of this case. This contention is based entirely upon the assumption that the Virginia Trust Company was such bona fide holder for value in due course. Of course if it was not such holder, then the transfer by it to the plaintiff, after its maturiy, would charge the plaintiff with all equities between the maker and the party to whom it was originally delivered. In order that the holder of a negotiable promissory note shall be a bona fide holder for value in due course, he must have paid value therefor, and the same must be delivered to him without condition, that is, it must become his property after having paid money or something of value' therefor, without knowledge of any defects in the transferor’s-title. If such holder has knowledge that the title of his trans-feror is bad, or that the note is tainted with fraud, he will
There is some complaint made in this case about the refusal of instructions requested by'the plaintiff, and the giving of an instruction on behalf of the defendant. It becomes unnecessary for us to inquire whether the action of the court in giving the instruction complained of, and in refusing to give those offered by the plaintiff, was correct or not. There was no question of fact to be submitted to the jury. The parties were substantially in agreement as to all of the pertinent facts, and the case on these undisputed facts was either for the plaintiff, or for the defendant, and it was the duty of the court to say which party was entitld to a verdict upon the undisputed facts. It was requested to instruct the jury to find a verdict for the defendant. This instruction should have been given. Inasmuch, however, as the jury has found the only verdict which the undisputed facts warranted, no just complaint can be made to the action of the court in refusing to
We find no error in the judgment of the circuit court complained of, and the same is affirmed.
Affirmed.