Cost v. MacGregor

• Decision Date: 24 March 1942
• Docket Number: 9263.
• Citation: 19 S.E.2d 599,124 W.Va. 204
• Parties: COST v. MacGREGOR et al.
• Court: West Virginia Supreme Court

19 S.E.2d 599

124 W.Va. 204

COST v. MacGREGOR et al.

No. 9263.

Supreme Court of Appeals of West Virginia.

March 24, 1942

Columbus Wetzel, of Clarksburg, for appellant.

Kay Casto & Amos, of Charleston, for appellee.

RILEY Judge.

Plaintiff P. R. Cost, instituted this chancery cause in the Circuit Court of Kanawha County to obtain against K. C. MacGregor and Maybelle MacGregor a money decree and to enforce such decree by process of attachment against their real estate. Defendants filed a joint plea of the statute of limitations, to which plaintiff interposed a demurrer. The circuit court having sustained the plea, this Court granted an appeal which, upon hearing, was dismissed as improvidently awarded because the order from which the appeal was taken was not a final or appealable order. Cost v. MacGregor W.Va., 14 S.E.2d 909. Thereafter, the circuit court by an order entered on July 16, 1941, again sustained the plea of the statute of limitations and dismissed the bill of complaint, after an expression by counsel for plaintiff that he did not desire to file an amended bill. From this decree plaintiff appeals.

The facts of this cause appear in the opinion prepared by Judge Fox upon the former appeal, and for convenience we repeat them as therein stated:

"On February 1, 1929, Cost-MacGregor Co., Inc., executed its negotiable promissory note for $5,000, payable to P. R. Cost, K. C. MacGregor and Maybelle B. MacGregor in one hundred twenty days. This note was indorsed by the payees and discounted at the Union National Bank at Clarksburg. The obligation of the indorsers was equal, the indorsement being joint. The note was not paid by the maker, was duly protested for non-payment, and paid by P. R. Cost on October 31, 1929, the amount paid, including interest, being $5,122.40. At the time of this payment, the bank made the following indorsement on the back of the note: 'This note paid and assigned to P. R. Cost without recourse.' On May 26, 1939, P. R. Cost instituted this suit in the Circuit Court of Kanawha County, and service of process was obtained on the MacGregors in that county. In the bill the facts above noted are set up, and a claim made by Cost against the MacGregors for two-thirds of the amount paid to the bank, on the theory that the MacGregors were liable for and should be required to contribute their share of the amount so paid on account of said note. The prayer of the bill is 'that defendants *** may be required to contribute to the payment of their proper part of the note and interest herein described ***' and '*** further and general relief as to equity may seem meet ***.' It should be noted that a writ of attachment was sued out and levied on a tract of land situated in Tyler County, West Virginia, and its sale sought under the lien created thereby."

Was the trial chancellor in error in concluding that this proceeding was "governed by the five years statute of limitations"? Code 1931, 55-2-6, which designates the periods in which the variant kinds of actions may be instituted in this jurisdiction, reads, in part, as follows:

"Every action to recover money, which is founded *** on any contract *** shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: *** if it be upon any other contract in writing under seal, within ten years; if it be upon *** a contract in writing, signed by the party to be charged thereby, *** but not under seal, within ten years; and if it be upon any other contract, express or implied, within five years, ***."

Initially, it is to be noted that plaintiff seeks to require defendants "to contribute to the payment of their proper part of the note and interest" and the trial court apparently applied the rule that since contribution is grounded in the theory of an implied promise, the limitation of five years under our statute was applicable. There is ample judicial authority to sustain such a conclusion when the principle of contribution is controlling, whether the proceeding be one in equity or at law. Bartlett v. Armstrong, 56 W.Va. 293, 49 S.E. 140; Adams v. Pugh's Adm'r, 116 Va. 797, 802, 83 S.E. 370; 18 C.J.S., Contribution, § 13; Tate v. Winfree, 99 Va. 255, 37 S.E. 956; Gregg v. Carroll, 201 Mo.App. 473, 211 S.W. 914. But, is the instant case one for the application of that doctrine?

The bill of complaint alleges the bank "assigned and endorsed" the note to plaintiff Cost, and the note itself shows that "This note paid by and assigned to P. R. Cost". The position of defendants, denied by plaintiff, is that payment by Cost extinguished the debt. Were this an instance where a party primarily liable for the payment of an obligation had discharged it, the recent case of Perkins v. Hall, W.Va., 17 S.E.2d 795, decided November 25, 1941, would sustain defendants' contention; but the opinion therein correctly stated that "unquestionably indorsers are secondarily liable". Ohio Valley Builders' Supply Co. v. First Nat. Bank, 110 W.Va. 320, 158 S.E. 181; Arnold v. Potomac Improvement Co., 118 W.Va. 425, 428, 190 S.E. 685. Under Ch. 98A, Section 120, Barnes' Code, 1923, effective at the time that Cost made payment to the bank, it was provided that "a person secondarily liable on the instrument is discharged (1) by any act which discharges the instrument * *", while Section 121 read that "when the instrument is paid by a party secondarily liable thereon, it is not discharged * *". Likewise, Section 119 enumerates the instances in which a note is discharged as follows:

"A negotiable instrument is discharged (1) by payment in due course by or on behalf of the principal debtor; (2) by payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; (3) by the intentional cancellation thereof by the holder; (4) by any other act which will discharge a simple contract for the payment of money; (5) when the principal debtor becomes the holder of the instrument at or after maturity in his own right."

The sections read in pari materia clearly are indicative that the instrument herein was not discharged. The Supreme Court of Texas in Fox v. Kroeger, 1931, 119 Tex. 511, 35 S.W.2d 679, 681, 77 A.L.R. 663, which involved payment of a note by an accommodation indorser, discussed the effect of such payment in the light of Sections 119 and 121 of its Negotiable Instruments Law, Vernon's Ann.Civ.St.Tex. art. 5939, which are identical in language with ours cited above, stated:

"If either section 119 or section 121 were considered alone, the language might make each difficult of interpretation, but the two sections must be construed together, and in the light of each other, since they deal with the same subject-matter. When so construed, the manifest meaning is that the payment by the principal debtor or by the party accommodated discharges the instrument, but payment by a party secondarily liable, other than the principal debtor or party accommodated, does not discharge or extinguish the debt."

It is pertinent, too, to observe that in Fox v. Kroeger the accommodation indorser, having paid the note, based his right of recovery upon the note itself; and while it is true that the case was an indorser-maker involvement, we think the case is significant because of its recognition of the principle that under the Negotiable Instruments Law payment by a party secondarily liable does not extinguish the debt and thus place the party seeking recovery in a position where he must apply to the conscience of the chancellor in a court of equity to revitalize the evidence of the indebtedness and thus necessitate invoking the doctrine of subrogation. The Virginia Court in Gatewood v. Gatewood, 75 Va. 407 recognizing a distinction between an assignment of a mortgage debt and a mere right of subrogation, remarked that a surety who pays a debt may require an assignment in equity and "although no such assignment or transfer is actually made, a court of equity will treat it as having been done." It would seem useless to require an equitable fiction where there has been an actual assignment as we have in the case at bar. Like the instant case, there had been an assignment of the note to the plaintiff in Fox v. Kroeger, but the principle enunciated by the Texas court in no wise stems from any rights under the assignment. While in that case the court did not express itself on the matter of the assignment, the Circuit Court of Appeals, Fourth Circuit, in Re Wingert et al., 89 F.2d 305, 307, in a case factually similar to the instant one, said, "The fact that one of the joint payees when called upon to pay under such an indorsement takes an assignment of the instrument does not, of course, enlarge the liability of the other or others or give the assignee any advantage over them." The court cites no authority for its statement. Moreover, it was not essential in that case for claimant to rely on the assigned instrument, and the assignment as a factor in the determination of the matter was of no importance and what the court said in relation thereto was in fact dictum. However, we accord significance to the action...