Bowman v. First Nat. Bank Of Brd.Way

• Decision Date: 20 November 1913
• Citation: 80 S.E. 95,115 Va. 463
• Court: Virginia Supreme Court
• Parties: BOWMAN v. FIRST NAT. BANK OF BROADWAY.

80 S.E. 95

115 Va. 463

BOWMAN

v.FIRST NAT. BANK OF BROADWAY.

Supreme Court of Appeals of Virginia.

Nov. 20, 1913.

1. Action (§ 40*)—Causes of Action—Joindeb— Indorser and Guarantor of Note. Under the rule that demands against the same party may be joined when they are all of the same nature and the same judgment may be given as to each, though the pleas may be different, a cause of action against defendant as indorser of notes sued on may be joined with another cause of action against him as guarantor of the same notes.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 320-327; Dec. Dig. § 40.*]

2. Pleading (§ 248*)—iDeclabation—Amendment—Different Cause of Action.

Since plaintiff, in an action on notes against defendant as indorser, might originally have charged defendant both as indorser and guarantor, it was not error to permit an amendment of the declaration, adding counts against defendant as guarantor of the same notes, after a plea denying defendant's liability as indorser.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 686, 687, 689-706, 708 1/2, 709; Dec. Dig. § 248.*]

3. Pleading (§, 248*)—Amendment—Different Cause of Action.

Where an amended declaration asserts rights or claims arising out of the same transaction, act, agreement, or obligation on which the original declaration is founded, the amendment will not be regarded as for a new cause of action, however great may be the difference in the form of liability asserted.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 6S6, 687, 689-706, 708 1/2, 709; Dec. Dig. § 248.*]

4. Bills and Notes (§ 467*)—Declaration-Ownership of Debt.

Where, in an action against defendant as guarantor of certain notes, the declaration averred that the notes were payable to defendant's order, and then there followed an averment that defendant, for a valuable consideration, undertook, promised, and guaranteed payment of the notes to plaintiff, there was a sufficient averment that plaintiff was the owner or legal holder of the notes so guaranteed.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1480-1488, 1490, 1491; Dec. Dig. § 467.*]

5. Bills and Notes (§ 516*) — Guaranty — Action against Guarantor—Evidence.

In an action against defendant as guarantor of certain notes, evidence held to warrant a verdict for plaintiff.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1800-1806; Dec. Dig. § 516.*]

6. Principal and Agent (§ 120*) — Signature of Notes—Authority—Evidence.

Where, in an action on notes alleged to have been signed by defendant's father, since deceased, who it was claimed had signed defendant's name as indorser, there were facts and circumstances proved indicating that defendant had full knowledge of the use his father was making of his name, evidence of about 50 other notes negotiated in and through plaintiff bank by defendant's father, bearing defendant's name either as maker or indorser, was admissible to show that the father had authority to indorse defendant's name on the notes sued on.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 402-412; Dec. Dig. § 120.*]

7. Witnesses (§ 344*)—Credibility—Reputation.

That plaintiff bank in an action on certain notes, after its cashier had testified, introduced evidence of his general reputation for truth did not entitle defendant to prove that the cashier sometimes took advantage of his position to lend his own money instead of that of the bank to persons who applied to the bank for loans.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.*] 8. Appeal and Error (§ 692*) — Record — Prejudice—Rulings on Evidence.

A bill of exceptions to the exclusion of evidence is insufficient to present a question for review where it does not show an offer of proof indicating the answer expected.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.*]

9. Trial (§ 260*)—Instructions-REquest to Charge.

In an action against defendant as indorser or guarantor of certain notes executed by defendant's father, since deceased, to plaintiff bank, instructions given held sufficient and to cover certain requests to charge.

[Ed. Note.—For other cases, see Trial, Cent Dig. §8 051-659; Dec. Dig. § 260.*]

Error to Circuit Court, Rockingham County.

Action by the First National Bank of Broadway against Sidney L. Bowman. Judgment for plaintiff, and defendant brings error. Affirmed.

Rudolph Bumgardner, of Staunton, and Conrad & Conrad, of Harrisonburg, for plaintiff in error.

Chas. Winfield, of Broadway, for defendant in error.

BUCHANAN, J. The defendant in error, the First National Bank of Broadway, brought its action of debt against the plaintiff in error, Sidney L. Bowman, upon two negotiable notes made by Joseph M. Bowman, payable to the order of the said Sidney L. Bowman, his son, and by him, as alleged in the original declaration, indorsed to the said bank. To that declaration a plea was filed, in which the defendant denied that he had indorsed the notes or authorized any one else to do so. Thereupon the plaintiff bank filed an amended declaration, in the second and third counts of which it is alleged that the defendant, Sidney L. Bowman, for a valuable consideration undertook and guaranteed the payment of the said notes to the bank. The defendant demurred to the amended declaration.

The first and fourth grounds of demurrer assigned are that the defendant could not be sued in the same action as indorser and guarantor, and that there was therefore a misjoinder of counts or causes of action.

The general rule is that demands against the same party may be joined when they are all of the same nature and the same judgment has to be given in each, although the pleas may be different. Burks on PI. & Pr. § 456, and authorities cited.

Tested by this rule it is manifest there was no misjoinder in this case.

Another cause of demurrer relied on was that an action entirely different from that originally sued on was attempted to be set up in the amended declaration.

In the original declaration, it is true, the demand asserted against the defendant is as indorser, and in the amended declaration the demand asserted is as guarantor as well as indorser. Both the original and the amended declarations were based upon the two negotiable notes made by Joseph M. Bowman, payable to the order of Sidney L. Bowman, and the recovery of the sum evidenced by those notes was the object of the action. The plaintiff might have declared against the defendant originally both as indorser and guarantor of the notes, and we know of no reason why he could not amend his declaration and add counts against him as guarantor of the same notes after he had filed his plea denying his liability on them as indorser. Our cases hold that, where an amended declaration asserts rights or claims arising out of the same transaction, act, agreement, or obligation as that upon which the original declaration is founded, it will not be regarded as for a new cause of action, however great may be the difference in the form of liability asserted in the original and the amended declarations. The two declarations are regarded as alleging variations in the form of liability to meet the varying phases of the evidence as it may appear. New River Min. Co. v. Painter, 100 Va. 507, 510, 42 S. E. 300, and eases cited.

Another ground of demurrer is that, in the counts against the defendant as guarantor, there are no averments of ownership of or right to collect the notes.

In these counts it is averred that "the defendant, for a valuable consideration in writing, undertook, promised, and guaranteed the payment [of the said notes] to the plaintiff." It would have been better pleading to have averred in terms how the plaintiff became the owner or holder of the notes. In each of these counts it is averred that the notes were payable to the defendant's order, and then follow the averments quoted as to the guaranty. These averments, taken together, necessarily imply, as it seems to us, that the plaintiff had become and was the owner or legal holder of the notes, the payment of which to it the defendant had guaranteed.

The next error assigned is to the refusal of the court to set aside the verdict as contrary to the law and the evidence.

The evidence tended to show: That, from the opening of the plaintiff bank in the year 1904 to the making of the notes sued on in the year 1908, Joseph M. Bowman had negotiated in and through the plaintiff bank 50 notes or more, which purported to have been made by S. L. Bowman, in which J. M. Bowman was the payee, and which were indorsed by him. That during the same period J. M. Bowman negotiated in and through the plaintiff bank eight or more notes, in which J. M. Bowman was the maker and S. L. Bowman was the payee. That the signature of S. L. Bowman, whether as maker or indorser on all these notes, as well as the notes sued on, are in the same handwriting, and that the officers of the plaintiff bank believed when said notes were negotiated that the signatureof S. L. Bowman on each was his genuine signature. That, when the several notes executed prior to September, 1906, approached maturity, notice thereof was sent in due and regular course of business to S. L. Bowman by mail, with a request on the envolopes in which they were sent to return to the bank if not delivered, and that none of the notices thus sent were returned. That in September, 1906, when J. M. Bowman was absent from the state, one of said notes was protested for nonpayment and notice thereof mailed to S. L. Bowman, who in a day or two after protest, and before J. M. Bowman had returned from West Virginia, went to the plaintiff bank in reference to it and was told that the matter could rest until J. M. Bowman's return. That a few days afterwards J. M. Bowman settled the protested note with a renewal note signed and indorsed in the same manner and in the same handwriting as to the...