Farmers' Nat. Bank of Claysville v. Howard

• Decision Date: 08 October 1912
• Citation: 76 S.E. 122,71 W.Va. 57
• Parties: FARMERS' NAT. BANK OF CLAYSVILLE v. HOWARD et al.
• Court: West Virginia Supreme Court

76 S.E. 122

71 W.Va. 57

FARMERS' NAT. BANK OF CLAYSVILLE v. HOWARD et al.

Supreme Court of Appeals of West Virginia.

October 8, 1912

Submitted January 21, 1911.

Syllabus by the Court.

In an action by the holder of a negotiable note against the indorsers only, it is not necessary to aver nonpayment by the maker.

Possession of a negotiable note, indorsed in blank by the payee, is prima facie proof of title.

Proof that notice of protest, properly addressed and stamped, was deposited in the post office at the place of protest, in time to go by mail on the day following the day of dishonor establishes due notice.

Addressing the person as "treasurer" does not affect the validity of the notice to him as an individual, if he is individually bound on the dishonored paper.

When it clearly appears that there is an error in the amount of the judgment appealed from, to the prejudice of the defendant in error, and the record contains data by which the same can be corrected, this court will make the correction, although no motion to correct it has been made in the court below, and will then affirm the judgment, unless there be other errors.

Error to Circuit Court, Ohio County.

Action by the Farmers' National Bank of Claysville against John A. Howard and others. Judgment for plaintiff, and defendants bring error. Affirmed.

T. S Riley and J. B. Handlan, both of Wheeling, for plaintiffs in error.

Caldwell & Caldwell, of Wheeling, for defendant in error.

WILLIAMS J.

Farmers' National Bank of Claysville recovered a judgment for $4,000.15 against John A. Howard, William C. Handlan, and Samuel W. Harper, three several indorsers upon a negotiable note made by the National Telephone Company of West Virginia, payable to its own order, and indorsed by it to said Howard; and defendants have brought the case here on writ of error.

It is insisted that the demurrer to the declaration should have been sustained for the reasons that (1) the declaration does not aver nonpayment by the maker of the note, and (2) because it does not show title in plaintiff. But we do not think these objections are valid. The maker of the note, who is also payee and first indorser, is not a party to the action. It is against the three several indorsers only. The making of a negotiable note, and each subsequent indorsement and transfer thereof constitute separate promises or undertakings, and formerly the holder's remedy was against the maker and indorsers separately. He could bring several suits at the same time, but, of course, was entitled to but one satisfaction. 3 Min. Inst. 441; 2 Dan. Neg. Inst (5th Ed.)§ 1203. But by virtue of statute, section 11, c. 99, Code 1906, he is now permitted to sue the maker and the several indorsers, or any intermediate number of them jointly. The giving of the right thus to sue and obtain a joint judgment, however, does not create joint promises of the several undertakings of the maker and indorsers; the nature of such undertakings remains the same as at common law. The statute, which relates to the remedy only, simply permits a joint action to be brought on separate and distinct promises.

In the present case the maker of the note is not sued; its promise to pay is only the inducement to the promises declared on, and hence it was not necessary to aver nonpayment by the maker; the breach of its promise was not a material matter. It was only necessary to aver a breach of the promise, or promises, sued on, which are the implied promises of the several indorsers. Reynolds v. Hurst, 18 W.Va. 648; 14 Enc. Pl. & Pr. 545; Page v. Snow, 18 Mo. 126; Perkins v. Conley, 4 Blackf. (Ind.) 187. The breach, constituting the cause of action in the present case, consists in the failure of the three several indorsers who are sued, to pay; and that is sufficiently averred. The promise of the maker is not sued on and, therefore, its breach need not be averred. 1 Chitty, Pl. 332, 333.

In an action upon a negotiable note it is essential that the declaration show that the plaintiff has title, and therefore a right to maintain his action. Bank v Hysell, 22 W.Va. 142. Counsel for defendants say that the declaration does not show plaintiff's title. We think it does. It avers that the National Telephone Company of West Virginia made its note on the 22d of April, 1910, payable to its own order, in 60 days, at the Farmers' National Bank of Claysville, Pa.; that on the same day it indorsed and delivered the note to John A. Howard; that he indorsed and delivered it to Samuel W. Harper; that said Harper likewise indorsed and delivered it to William C. Handlan; and that said Handlan "indorsed and delivered" it to the plaintiff, all on the day of its date. Does not this show plaintiff to be the owner of the note? What more is needed to pass...