Bank Of Spencer v. Simmons
| Decision Date | 15 March 1897 |
| Citation | 43 W.Va. 79 |
| Parties | Bank of Spencer v. Simmons, et al. |
| Court | West Virginia Supreme Court |
1, Action for Use Negotiable Note Endorsement.
Where a negotiable note is made payable at a: particular bank, and such bank is also made payee, and said note is indorsed in blank by a third party, and a fourth party, on the day of the execution of said note, becomes the owner thereof, by paying the maker the cash therefor, and before maturity said note is indorsed to said bank tor collection, and is subsequently duly protested for non-payment, said fourth party may sue in the name of the bank for his use and benefit, and recover judgment against said maker and indorser. (p.82.)
2. Negotiable Note Ownership.
The possession of a bill or note which is payable to bearer or indorsed in blank is prima facie evidence of ownership, and also that the holder received it upon a valuable consideration, paid therefor in the usual cours*1 of trade or business, (p. 83.).
Error to Circuit Court, Roane county.
Action by the Bank of Spencer, to the use of A. D. Ferrell, against G. B. Simmons and W. S. Simmons. Judgment for plaintiff, and defendant William S. Simmons brought error.
Affirmed.
Schilling & Starkey for plaintiff in error. Walter Pendleton for defendant in error. English, President:
On the 15th day of February, 1895, one G. B. Simmons executed a note in flu following words and figures: on which note are the following indorsements: "W. S. Simmons." On the 18th day of May, 1895, said note was duly protested on non-payment. On the 8th day of June, 1895, an action of debt was instituted in the circuit court of Roane county by the Hank of Spencer, a corporation under the laws of West Virginia, which sued for the use and benefit of A. 1). Ferrell, on said note, against G. B. Simmons and W. S. Simmons. A demurrer to the plaintiff's declaration was interposed, which was considered by flu court, and overruled. The defendant, W. S. Simmons, pleaded nil debet, and issue was joined thereon, and tie matters of law and fact were, by agreement of parties, submitted to the court; and, the court having heard the evidence and argument of counsel thereon, the said C B. Simmons allowed judgment to go against him by default, and the court found for the plaintiff the sum of live hundred and eight dollars and ninety cents, and gave judgment for the plaintiff for the use of said A. I). Ferrell for that sum, against the defendants, with interest from the date of said judgment and costs. The defendant, W. S. Simmons, moved the court to set aside said judgment, and grant him a new trial, because the same was contrary to tin law and tlx evidence, and was not warranted by tin evidence, which motion was overruled; and the said W. S. Simmons excepted, and asked that the evidence be certified, which was accordingly done, and the said defendant obtained this writ of error.
The first error assigned and relied upon is that the declaration was not sufficient, because if does not allege that flu note was not delivered to the plaintiff, or that the same was indorsed to the plaintiff; but upon this point we find that 1 Daniel, Neg. Inst. § 63, states that "it is not necessary to aver the1 delivery of a bill or note, for the averment that a bill was drawn or a note made includes the idea of a delivery, without which the drawing or making is not complete." The declaration in this case avers that the said (J. B. Simmons made his certain note in writing, etc., and that the said W. S. Simmons afterwards, and before the1 said note became due and payable, according to the tenor and effect thereof, to wit: on the day and year last aforesaid, indorsed the said nott\ whereby he then and there ordered and appointed the sum of money therein specified to bepaid to the saiel Bank of Spencer, etc. This we regard as sufficient, without alleging the delivery of the note to the payee. See Chit. Bills & N. (7th Am. Ed.) p. 360, where the author says: "It is not necessary to allege as part of the plaintiff's title that the hill, etc., was delivered to him, as the allegation that the hill was payable to tie payee or that an indorsement was made includes if," citing Churchill v. Gardner, 7 Term R. 596; Smith v. McClure, 5 East 477. So, in the case of Railroad Co. v. Lickiss, 72 I11, 522, it was held that, The hauling English case on this point is that of Churchill v. Gardner, supra., where it is held that "it is not necessary in a declaration on a bill of exchange to aver that the maker delivered it; it is sufficient testate that he made it." These authorities we regard as amply sufficient to show that the circuit court committed no error in overruling the demurrer to flu plaintiff's declaration, for the reason that if fails to allege that the note...
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