Goff v. Miller

• Decision Date: 21 March 1896
• Citation: 24 S.E. 643,41 W.Va. 683
• Court: West Virginia Supreme Court
• Parties: GOFF. v. MILLER.

24 S.E. 643

41 W.Va. 683

GOFF.

v.MILLER.

Supreme Court of Appeals of West Virginia.

March 21, 1896.

nonnegotiable note — action against rbmotb Assignor.

The assignee of a note not negotiable can only recover from a remote assignor the consideration paid such assignor by his immediate assignee for such note.

(Syllabus by the Court.)

Error to circuit court, Roane county.

Action by H. F. GofC against John C. Miller. Judgment for plaintiff. Defendant brings error. Reversed.

Schilling & Starkey, for plaintiff in error.

J. W. C. Armstrong, for defendant in error.

DENT, J. Writ of error to the judgment of the circuit court of Roane county, rendered on the 5th day of April, 1894, in favor of H. F. Goff, plaintiff, against John C. Miller, defendant, for the sum of $118.62, with interest and costs. The facts are as follows, to wit: The defendant agreed to give his brother, Joseph Miller, a small tract of land, who gave the same to one Thomas J. Woods, and he erected a small building thereon for a shoemaker shop. Woods sold this property to Christopher Bilby for $100, and had him execute his note payable to the defendant, in whom the legal title to the property still remained. He then had the defendant assign the note to him, paying no consideration therefor, but simply to show that defendant was to make the deed for the property. Woods then assigned the note to J. P. Short, who assigned it to plaintiff. Plaintiff assigned it to J. G. Schilling. Schilling, not being able to make it off of Bilby because of his insolvency, recoursed it on the plaintiff. Plaintiff thereupon instituted this suit to recover the amount paid by him from the defendant, and obtained the judgment aforesaid. Plaintiff further testified: "That some two or three months after he got the note of J. C. Short he saw the defendant at the mill, where he (said Goff) was around assessing, and that be told said defendant that he had the Bilby note, which was assigned by him, said defendant; that he (Goff) did not know much about Woods or Bilby, and that Short was not good; that he had traded for the note because the defendant's name was on it, and that he knew the defendant was good, and that defendant said he was not very good; that Bilby had property, and he expected Bilby to pay it, and that he (Goff) said he had traded for it because defendant's name was on it; that defendant did not claim to him that he was not to be responsible for said note, and that he (the plaintiff) had no notice of any contract between said Woods and said defendant; that the plaintiff had no notice that the defendant was not to be liable on said note, and the plaintiff had no notice that no consideration passed from said Woods to the defendant for his assignment of said note." The note was nonnegotiable.

Defendant assigns the following errors, to wit: First. The complaint in said action is faulty because it does not aver a consideration for the assignment from the petitioner to T. J. Woods. 4 Rob. Prac. 422. Without such averment of consideration the complaint did not show any cause of action against the petitioner. Second. The court erred in refusing to exclude the plaintiff's evidence when he had rested, there being no evidenceof any consideration for the assignment from the petitioner to said Woods. Third. It was error not to set aside the verdict of the jury, because the evidence clearly showed that there was no...