| Va. | Apr 29, 1886
delivered the opinion of the court.
•The statute provides that, “in every action of assumpsit the plaintiff shall file with his declaration an account showing the several items of his claim, unless it be plainly described in the declaration.” Code 1873, chapter 167, section thirteen;
The first question then is, whether the hustings court erred in overruling the demurrer.
The precise point of objection upon which the demurrer was based is, that the due bill or promissory note mentioned in the bill of particulars, having been made payable to Mrs. W. D. Smith, the plaintiff is not entitled to recover thereon in his own name.
The answer, however, to this objection is, that the bill of particulars sets forth that the note, though made payable at the instance of the plaintiff to Mrs. Smith, was, in point of fact, never delivered to her, and never came into her possession; and if this be true, as the demurrer admits it to be, then Mrs. Smith never acquired title to the note, and hence has no right to recover thereon.
The principle is elementary that delivery is essential to a perfect promissory note. Until delivered to the payee it has no vitality. And not only must there be a delivery, but an acceptance by the payee. Story on Prom. Notes (sixth ed.), sections nine to fourteen; Curtis v. Gorman, 19 Ill. 141" court="Ill." date_filed="1857-12-15" href="https://app.midpage.ai/document/curtis-v-gorman-6949010?utm_source=webapp" opinion_id="6949010">19 Ill. 141.
Moreover, the action is not upon the note, but upon the original cause of action, to which reference will presently be made in another connection. And it is to be observed that the plaintiff’s claim consists of three items—namely: first, the item of $989.99, for which the note in question is alleged to have been made; second, the item of $214, on account of “sundry old store accounts,” etc.; third, the item of $454,
The established rule is, tha1¡ a demurrer to a declaration containing several counts will be overruled, if any one of the counts be good; and the same rule applies to a demurrer to a single count containing a demand of several matters, which are divisible, if any one is well claimed. Henderson v. Stringer, 6 Gratt. 130; 4 Min. Insts. (Pt. I.) 895.
The next question arises upon th*e defendant’s first bill of exceptions, which was taken to the refusal of the hustings court to instruct the jury to disregard the evidence of the plaintiff, in so far as it tended to prove the first item of the claim contained in the bill of particulars.
Upon this point the plaintiff, as a witness in his own behalf, testified that he was a member of a mercantile firm in Petersburg, doing business under the name of P. H. Wright; that he put into the partnership business the sum of $2,000, “ held by him as homestead property,” with the understanding that the sum so advanced would be returned to him whenever he chose to withdraw from the firm; that at the time of the dissolution of the firm it was indebted to him in the sum of $989.99 on account of the money so advanced by him; that the defendant purchased the stock of goods on hand belonging to the firm, and assumed the payment of the balance due by it to the the plaintiff, for which, at the request of the latter, the defendant executed the note in question, payable to the wife of the plaintiff, Mrs. W. D. Smith, which he delivered to the plaintiff, but which was never delivered to Mrs. Smith, and never came into her possession, and that the same has been lost or destroyed.
The defendant contends that the evidence of the plaintiff in
The remaining question necessary to be considered relates to the refusal of the hustings court to grant the motion of the defendant to set aside the verdict, and for a new trial.
This motion was based on three grounds: “1. That the verdict is contrary to the law and the evidence; 2. That the court improperly admitted the evidence of the plaintiff to prove title to the note set up in the first item of the bill of particulars ; and, 3. That the said Mrs. W. D. Smith not being a party to the action, a judgment in favor of the plaintiff would not bar an action by her on the note, and thus the defendant might be subjected to two judgments against him for the same debt.”
In respect to the first of these objections, it is sufficient to say that the facts are not certified, nor is the evidence. The court refused to certify the facts, on the ground that the evidence was conflicting, and it does not appear that it was even asked to certify the evidence. And the second objection, as we have already seen, is not well taken; nor is the third. The fact that the note was drawn payable to Mrs. Smith was of itself, for reasons already stated, no bar to the plaintiff’s
The same answer applies to the argument, though the point was not made in the lower court, that if the note of the defendant is discarded, his promise to pay the debt of the firm to the plaintiff was not in writing, and, therefore, not enforceable under the statute of frauds. ’Besides, it appears from the evidence of the plaintiff that the promise was founded on a new and original consideration, namely, the stock of goods belonging to the firm of which the defendant became the purchaser, and hence is not within the statute of frauds. Tindal v. Touchberry, 3 Strob. 177; Cooper v. Chambers, 4 Dev. (Law) 261; Hopkins, Brother & Co. v Richardson, 9 Gratt. 485" court="Va." date_filed="1852-11-15" href="https://app.midpage.ai/document/hopkins-brother--co-v-richardson-7668303?utm_source=webapp" opinion_id="7668303">9 Gratt. 485, 494.
Lacy, J., and Fauntleroy, J., dissented.
Judgment aeeirmed.