Bank of Huntington v. Hysell

• Decision Date: 22 September 1883
• Citation: 22 W.Va. 142
• Parties: THE BANK OF HUNTINGTON v. HYSELL et al.
• Court: West Virginia Supreme Court

22 W.Va. 142

THE BANK OF HUNTINGTON v. HYSELL et al.

Supreme Court of West Virginia.

September 22, 1883

Submitted Jan. 29, 1883.

1. In an action of debt on a negotiable note the plaintiff must allege in his declaration, that he is the payee or endorsee or holder of the note. If he fails to make such allegation, though he alleges the drawing of the note and its endorsement by the payee in blank, the declaration is fatally defective on general demurrer. (p 144.)

2. In an action on a negotiable note against an endorser the declaration must allege, that the note was duly presented for payment at the place, where it was payable, at the time, when it became due and payable, and that it was not paid, and that thereupon the said note was then duly protested for non-payment, of all of which the endorser had prompt notice. A declaration, which simply states, " that the note was presented at the close of banking hours to the cashier of the bank, where it was payable, for payment, which was refused and thereupon it was duly protested for non-payment, notice whereof was given said endorser," is fatally defective on general demurrer, as it does not state when the note was presented for payment or where it was presented. (p. 145.)

3. A promissory note for money payable at an unincorporated bank in this State is not a negotiable note; and the maker and endorser of such a note can not be sued jointly. (p. 146.)

GREEN JUDGE, furnishes the following statement of the case:

At November rules, 1873, the plaintiffs filed the following declaration in the circuit court of Cabell:

" In the Circuit Court of Cabell County to-wit:

John N. Buffington, Peter C. Buffington, J. Harvey Poage, W. H. Hagen, Jno. Hooe Russell, D. W. Emmons and M. Erskine Miller, partners doing business as the Bank of Huntington, complain of M. L. Hysell and A. G. White who have been summoned to answer the said plaintiffs in an action of debt, and they demand of said defendants the sum of two hundred and fifty dollars, which they owe to and unjustly detain from the said plaintiffs, for that, whereas, heretofore, the said M. L. Hysell, by a certain note in writing, signed with her hand, dated Guyandotte, January 29, 1873, to-wit, at the county aforesaid, promised to pay A. G. White, or order, the sum of two hundred and fifty dollars, ninety days after date, at the Bank of Huntington, which said note was indorsed by the said A. G. White; and said note, as indorsed, was presented at the close of banking hours to John Hooe Russell, cashier of the Bank of Huntington, for payment, which was refused, and thereupon it was duly protested for non-payment, notice whereof was given to the said M. L. Hysell, maker, and the said A. G. White, endorser; and the said defendants then and there in consideration of the premises, promised to pay to said plaintiffs the amount of said note according to the tenor and effect thereof. And although the said note has been long since due it has not been paid, either by M. L. Hysell, the maker, or by A. G. White, the endorser, or by any one for them, or any part thereof, although they have both been often requested so to do, but they have wholly refused and still refuse so to do, to the damage of the said plaintiffs of the sum of one hundred dollars; therefore they bring this suit."

At the December term of the circuit court of Cabell the defendants demurred to this declaration and also pleaded non-assumpsit, and issue was joined. At the June term, 1874 the following entry was made in the case:

" This day came the parties, by their attorneys, and thereupon the defendant, M. L. Hysell, tendered a plea in writing, to which the plaintiffs, by their attorney, objected to the filing of said plea, and demurred generally to the same; which objection and demurrer was sustained by the court, and the defendant, A. G. White, withdraws his former pleas entered in this cause. Thereupon the plaintiffs moved the court for a judgment against the said defendants; and the office judgment obtained at rules not having been set aside as against the defendant, A. G. White, and the defendants failing to appear, though called, and neither party requiring a jury, the cause, was, by consent of parties, submitted to the court. And the court after having heard the evidence is of the opinion and so finds that there is now due from the defendants, M. L. Huysell and A. G. White, upon the debt in the declaration mentioned the sum of two hundred and sixty-eight dollars and seventy-six cents, including principal, interest and costs of protest, after allowing all legal offsets that the defendants are entitled. Therefore, it is considered by the court that the plaintiffs recover against the defendants, M. L. Hysell and A. G. White, the said sum of two hundred and sixty-eight dollars and seventy-six cents with legal interest thereon from this day until paid, and their costs by them about their suit in this behalf expended, including $____ as allowed by statute. By consent, no execution is to issue upon this judgment until after the expiration of sixty days from the rising of this court against the defendant, A. G. White."

The clerk in copying the record has here inserted a plea of Mary L. Hysell, that she was, when she executed the said note, and still is the wife of J. H. Hysell; and in his note states, that this is the plea mentioned in said order or judgment. From this judgment Mary L. Hysell and Thomas H. Harvey assignee of A. G. White bankrupt have obtained a supersedeas from this Court.

John B. Laidley for plaintiffs in error.

Simms & Enslow for defendants in error.

GREEN JUDGE:

The circuit court failed entirely to decide the demurrer filed by the defendants to the plaintiffs' declaration. Of this the defendants cannot complain in this Court, if the declaration was good; but if it was fatally defective, they can complain of this omission. Was the declaration then good? There was in this declaration several fatal defects. It will suffice here to point out a few of them. The plaintiffs in this declaration are seven individual partners doing business as the Bank of Huntington; but these plaintiffs utterly fail to show or state, that they have any interest whatever in the matter involved in this suit. The declaration simple states, that the defendant, M. L. Hysell, executed her note to the defendant, A. G. White, for two hundred and fifty dollars payable ninety days after its date at the Bank of Huntington, and that this note was endorsed by the defendant, A. G. White. Its presentation and protest are then stated in a manner so vague and loose as to be of no effect in binding the endorser. The allegation of this protest in this declaration fails to state, that this note was presented at the Bank of Huntington for payment, when the same became due and payable according to its tenor, but simply states that it " was presented at the close of banking hours to John Hooe Russell, cashier of the Bank of Huntington, for payment, which was refused, and thereupon it was duly protested for non-payment, notice whereof was given to M. L. Hysell, maker and A. G. White endorser." The declaration utterly fails to state, when this note was thus presented for payment and protested and notice thereof given. Of course such a statement of the presentation of the note, the protest thereof and the notice thereof is utterly defective, as the effect of such presentation, notice and protest is entirely dependent on the promptness, with which these acts are done.

This declaration does not state, that the plaintiffs have any interest of any sort in this note. It is true it does state that it was endorsed by the payee, A. G. White, but who was the endorsee, it does not state. It fails entirely to state, as it should have done, that the said payee, A. G. White, thereby " ordered and appointed the said sum of money in the said note specified to be paid to the plaintiffs." It is true after stating the protest in the vague manner indicated the declaration does say: " And the said defendants then, and there in consideration of the premises promised to pay the said plaintiffs the amount of the said note according to the tenor and effect thereof." But this declaration fails to show any sort of consideration for such a promise. So that had it been a declaration in assumpsit instead of debt, this statement of this promise would have been of no avail. It is true, as claimed by the counsel for the plaintiffs in error, that the mere possession of a negotiable instrument payable to the order of the payee and endorsed by him in blank is in itself sufficient evidence of his right to present it and to demand payment thereof and bring suit thereon if it be not paid. See Shed v. Brett, 1 Pick. 401; Seaver v. Lincoln, 21 Pick. 267. But though this be the rule of evidence, yet it in no manner modifies the rule of pleading, which requires the plaintiff in all cases to show title. Had the plaintiffs alleged title, they could under the rule, which we have stated, have proved their title by the simple production of the note sued upon endorsed in blank by the payee. But the fact, that title might thus be proven,...