Burton v. Absent

Decision Date01 May 1877
Citation10 W.Va. 470
CourtWest Virginia Supreme Court
PartiesBurton & Co. v. Hansford et al. (Absent, Johnson, Judge.)
1. It is a general rule in pleading, that whatever facts are neces-

sary to constitute the cause of action must be directly and distinctly stated in the declaration; but a general indebitatus assumpsit count in a declaration, concluding, "And whereas, the defendants, afterwards, to-wit: on the day and year aforesaid, in consideration of the premises, then and there promised to pay the said sum of money to the plaintiffs on request; yet they have disregarded their promises, and have not paid the same, or any part thereof, to the plaintiffs' damage $1,000; and therefore they bring suit, &c," is, nevertheless, good on general demurrer.

2. A stranger who endorses negotiable paper at the time it is

made, in prima facie liable to the payee as original promissor or as guarantor, as the payee may at any time elect. But it may be shown by parol evidence that he intended to bind himself only as guarantor, or even as second endorser; and if so shown by such evidence, he can only be held bound according to the original understanding.

An appeal operating as a supersedeas granted upon the petition of James F. Hansford, from a judgment of the circuit court of Kanawha county, rendered on the 11th day of June, 1874, in a suit then pending in said court, wherein Robert B. Burton, William P. Burton and Charles Peniman, partners under the firm name of Gideon Burton & Co., were plaintiffs, and R. H. Lee and James F. Hansford, were defendants.

Green, President, who delivered the opinion of the Court, gives a sufficient statement of the case.

The Hon. Joseph Smith, Judge of the seventh judicial circuit, presided below.

William H. Hogeman, for plaintiff in error, referred to the following authorities:

4 Rob. Pr., 548; Bishop v. Hayward, 4 Durnf. & E., 471; Story on Promissory Notes, §480; Bacon v. Brinham, 37 N. V., 614; Hall v. Neweomb, 7 Hill, 416; 2 Rob. P., 231; Spiel v. Oilman, 1 Comstock, 221, 231; Herrick v. Carman, 12 Johns. 160; Tillman v. Wheeler, 17 Johns., 328; Fegenbush v. Lang, 28 Pa. St.,.194; Farmers'1 Bank, et al. v. Vanmeter, 4 Rand., 553; Chalmers, Jones & Co. v. McMurd, 5 Munf., 252; Hogan v. Davis, 8 Gratt, 4; Bank of the United States v. Beirne, 1 Gratt., 265.

C. E. Doddridge, for plaintiff in error, referred to the following authorities:

2 Tuck. Com., 99; 1 Bouv. L. D., 136; 2 N. H., 289; Hardin, 225; 2 Bouv. L. D., 417; Syme v. Griffin, 4 H. & M., 277; 4 Munf., 260; Cooke v. Simms, 2 Call., 39; 6 Munf., 506; 2 Chitty PL, 115; 1 Chitty PL, 293-4; Edw. on Bills, 273-4, 610; 19 Johns., 159; 1 Comstock, 321; Pitts v. Congdon, 2 Comstock; 7 Hill, 416, 426; 4 Munf., 279; 1 Patt. & 11. (Va.), 228; Freeman on Judg?t, §231, 232, 235; 2 Am. L. Cases, 322; 2 Leigh, 195; 7 Leigh, 83; Ellis v. Brown, 6 Barb., 293.

W. Molohan and James M. Laidley, for defendants in error, referred to the following authorities:

Silver v. Henderson, 3 McL., 165; 7 "Wheat, 75; 2 McL., 213, 235; Edw. on Bills, 679; 28 Pa. St., 189; 6 McL., 496; Bey v. Simpson, 22 How., 350; Cook v. Weightman, 1 Cr. C. C, 449; Offutt v. Hall, ibid, 504; McComber v. Clark, 3 Cr. C. C, 6, Green President, delivered the opinion of the " Court.

This was an action of assumpsit brought in the circuit court of Kanawha county, by Gideon, Burton & Co., against R. H. Lee and James F. Hansford, based on the two following notes:

"$236.98. Coalsmouth, W. Va., Nov. 11, 1872.

"Sixty days after date I promise to pay to the order of Gideon Burton & Co., $236.98 at First National Bank, Charleston, W. Va.

"Value recived, with eight per cent, interest after maturity. No. 375. R. H. Lee.

"Due Jan. 10-13, 72.

"Endorsed James F. Hansford."

$235.00. Coaesmotjth, W. Va., Nov. 11, 1872.

"Ninety days after date I promise to pay the order of Gideon Burton & Co., $235.00 at First National Bank, Charleston, W. Va.,

"Value received, with eight per cent interest after maturity.

"No. 275. R. PI. Lee.

"Due 9-12, '72.

"Endorsed James F. Hansford."

The writ was served on Hansford alone. The declaration contained lour counts, the second, third and fourth of which were special counts, and the first a general count for the price and value of goods bargained and sold, for the price and value of work done, for money lent, for money paid, laid out and expended by plaintiff, and for money due to the plaintiff from the defendants on an account stated. The special counts set out these, notes, avering in some of them that Hansford had signed these notes as security, and in another that he endorsed them and they had been protested. In the first count there is no separate allegation in any form of a promise by the defendant to pay the plaintiffs, and in the three special counts there is no such averment, except that the notes are recited in which there are such promises. The declaration then concludes "and whereas the defendants afterwards, to-wit: on the day and year aforesaid, in consideration of the promises respectively, then and there promised to pay the said several moneys respectively to the plaintiffs on request. Yet they have disregarded their promises, and have not paid any of said moneys, or any part thereof, to the plaintiffs' damage $1,000, and therefore they bring suit." A proper bill of particulars was filed with the declaration. The defendant, Hansford, demurred to this declaration, and the court overruled the demurrer. And he then plead non assumpsit, and issue was joined, and neither party desiring a jury, by consent the case was submitted to the court for trial in lieu of a jury, and the court having heard the evidence found for the plaintiffs, and assessed their damages at $512.75, and rendered judgment therefor against said Hansford, with interest thereon from June 11, 1874, the date of said judgment; the defendant Hansford, filed two bills of exceptions, one was as to the admission of said two notes as evidence, the other was to the finding of the court for the plaintiffs upon the evidence in the case, and the refusal of the court to award him a new trial. From this judgment a writ of error and supersedeas has been awarded him.

The first question is, did the court err in overruling the demurrer to the declaration? It is claimed that the breach laid in the declaration is insufficient. It is "that the defendants have disregarded their promises and have not paid any of said moneys, or any part thereof." It is insisted that to this allegation should have been added " nor hath either of the defendants paid the said sums of money, or any of them, or any part thereof." But the averment "that they have not paid" is sufficient, for payment by one is payment by all. See Chitty's Pleadings, vol. 1, p. 334. The next objection urged to the declaration is that there is in it no suffi- cient allegation of a promise by the defendants to the plaintiffs and is an assumpsit by the defendants, is the very gist of this action, it must be alleged directly and positively, and not by way of recital merely, or after a " whereas," as is done in the declaration in this case.

It always has been, and still is a general rule in pleading, that whatever facts are necessary to constitute the cause of action should be directly and distinctly stated in the declaration, and such facts should not be left to be inferred from other facts distinctly alleged in the declaration, and arguments, inferences and matters of law should be excluded. Lipe v. Becker, I Denio, 508. Many illustrations of this general rule are to be found in the reports. It will suffice here to point out a few of such illustrations, taken from the Virginia reports, in actions similar to the present. Thus, in Winston's exo'r v. Francisco, 1 Wash., 187, it was held that in an action of assumpsit, the promise must be directly averred, and not by way of inference, and that the omission of such direct averment was not cured after verdict by the statute of jeofails, as it then was, though it provided "that a verdict shall cure the omission of an averment of any matter, without proving which, the jury ought not to have given such verdict.'" In that case the declaration was worded, "notwithstanding, promising the said money to the plaintiff to pay when required, the defendant hath not paid, though thereunto often times required." And it was held that this was no sufficient allegation of a promise. So in Sexton v. Holmes, 3 Munf., 566, the court set aside a judgment after verdict because no promise was sufficiently alleged in the declaration, though it did set forth that an article of agreement was made and entered into by the plaintiff and defendant, wherein and whereby the defendant was to do certain things, the failure to do which things was alleged. So in Cook v. Simms, 2 Call., 39, a demurrer to a declaration in assumpsit was sustained which averred that the defendant made a certain note in these words, setting forth the note verbatim, and then alleged a breach of promise contained in the note, but which promise was not alleged in any manner except that it appeared in the note set out verbatim. The same was held in Wooddy v. Flourney, 6 Munf., 506, when the declaration was similar, and a judgment thereon was reversed after verdict.

Since the rendition of these decisions, the Law has been modified in cases where there has been no demurrer to the declaration and judgment after verdict is sought to be recovered, because of such defects in the declaration. The Revised Code of 1819, having provided, "that after verdict, no judgment should be reversed for setting forth by way of recital, any matter which ought to have been set forth by way of averment," See R. O. Vol. 1, chapter 128, §103, page 512. But when the declaration is demurred to, the law remains unchanged by any statute since these decisions were rendered, for the provision in our Code," that a demurrer shall not be sustained unless there be omitted something so essential to the action or...

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