48 W. Va. 144 | W. Va. | 1900
J. R. Smoot brought assumpsii in the circuit court of Taylor County against John T. McGraw upon a promissory note made by McGraw to Hoffman Sommers, and transferred by Sommers to Francis M. Durbin, and by Durbin to Smoot. A jury trial was had, resulting in a verdict for Smoot, and judgment was rendered thereon, and McGraw sued out a writ of error. Mc-Graw’s counsel have no brief. The assignment of error is all we have to specify the grounds of complaint against the judgment. McGraw assigns as error the overruling of his demurrer to the declaration. It is claimed that the declaration does not aver that the assignee of the note by Durbin to Smoot was made after the assignment by Sommers to Durbin. I think it does. After stating the execution of the note by McGraw to Sommers, the declaration says, “and the said Hoffman Sommers, after the
The next point of complaint under the head of demurrer is that the declaration does not state that the defendant did not pay the note to the payee or his immediate assignee after the assignment to the plaintiff, no notice of any of the assignments having been given to the defendant. Plaintiff’s counsel seeks to meet this point by sa3dng that a declaration need not aver nonpayment. to Sommers or Durbin after Durbin’s assignment to Smoot. I clo not concur in this position, for I think that the declaration must contain a breach of obligation or duty, a wrong done to give cause of action, which wrong or breach of duty, in the case of a promissory note, is the non-payment of the debt; and an averment of non-payment being essential, if the note has passed through several hands, the declaration must aver that it was not paid to any of those who had authority to receive payment. Judge Green’s opinion in Douglass v. Central Land Co., 12 W. Va. 502. If notice to McGraw of assignment had been averred, as the forms prescribed (4 Rob. Prac. 192), it would only be neeessar}r, to averr non-payment to assignor before such notice, as thereafter the assignor could not receive payment;
Another assignment of error is, that the court erred in permitting the biR of particulars to be filed. The defendant himself moved the court to require the plaintiff to file the bill of particulars. The declaration being a good one on a promissory note, required no bill of particulars, being definite in itself. When the plaintiff filed the promissory note as Ms bill of particulars, there was no' error in allowing it, simply because it was surplusage,
Another assignment of error is that the court erred in not excluding the evidence, the note, from the jury. I do not think this exception can be made in the absence of a motion for a new trial. Brown v. Brown, 29 W. Va. 777. Considering the matter, however, it is said that no assignment to the plaintiff was shown by the evidence. The note was shown, and endorsed upon it were the names of Hoffman Somers, first, and H M. Durbin, next. That showed an assignment to the plaintiff. A mere delivery of a promissory note, with intent to assign, is a good assignment. It is well settled that an endorsement of the obligee’s name merely, coupled with delivery, is a valid assignment, such a blank endorsement importing an authority to any bona fide holder to write over the nanie a full assignment or endorsement to him, “and in fact, without being filled up, may be regarded, for all purposes of pleading and evidence, as a full assignment or endorsement. Courts will consider that as done which may be done, and will not even require the formality of writing out a full assignment or endorsement at the trial. This is the uniform practice in regard to ordinary bonds and notes, and is convenient and legal.” McGuire v. Pierce, 9 Grat. 167, 178; 3 Minor 434. The plaintiff produced this note in evidence, and his possession, in connection with such endorsements, was evidence of assignment, and assignment to him, and of his ownership of the note. In this connection, though it might be more pertinent in discussing the demurrer, 1 note that the declaration, instead of being the one always used in actions by an assignee against the maker of a non-negotiable note or bond, averring arc assignment, does not allege an assignment otherwise ihan by the use of the word “indorsed,” a word applicable only to negotiable instruments. and the question occurred to my mind whether this alleged an assignment to the plaintiff of a non-negotiable note, as this is. An assignee, not being payee, must show his title by averring an assignment. 1 Barton’s L. Prac. 321. I find, what is reasonable, that the courts have have held that the use of the word “indorse” will operate as the. word “assign” in pleadizrg the assignment of a non-negotiable instrument. 1 Barton’s L. Prac. 237; Freeman’s Bank v. Ruckman, 16 Grat. 126.
Seeing no error we affirm the judgment.
Affirmed.