Hefflebower v. Detrick.

• Citation: 27 W.Va. 16
• Parties: Hefflebower v. Detrick.
• Decision Date: 21 November 1885
• Court: Supreme Court of West Virginia

27 W.Va. 16

Hefflebower

v.Detrick.

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1884.

Decided November 21, 1885.

A promissory note in the usual form, not specifying any place of payment, made to the plaintiff residing in this State, commencing: "Kabletown, January 23, 1871," by uB-, n then residing, and engaged in business at Kabletown in this State, and by uD.n whose place of residence at that time does not certainly appear, will in the absence of proof showing that it was executed elsewhere, be presumed to have been executed by "R." and uD.n in this State, (p. 28.)

A promissory note purporting on the face thereof to have been made at a place within this State, not specifying any place where the same is payable, will in the absence of proof, that it was made or payable elsewhere, be presumed to have been made, and that the same is payable in this State, (p. 24.)

In an action of assumpsit, brought against "I)" upon said note issues were joined upon special replications to his plea of the statute of limitations, alleging in substance that "IV before the plaintiffs action on the note accrued, had resided in this State, and that before said right of action accrued, he departed without the same, and thereafter continued to reside out of this State until the bringing of said action; upon the trial of these issues, in the absence of proof that uD.n executed the note elsewhere, it will be presumed that he executed the same in this State, (p. 24.)

If a person residing in another State, makes his note in this State, and thereafter departs from, and continues to reside out of this State, he will be considered as a person, uwho before the action accrued resided in this State," and who by his departure from it, and his residence out of it, has obstructed the payee4 in the prosecution of his right of action on such note during such absence from this State, (p. 25.)

If UR." residing in this State, makes his note to "H." also residing in this State, and sends the same to "D.n residing in another State to be theresigned by him and returned to "R." to be by him delivered to "H." and the same is there so signed and returned to "R.," who delivered the same to UH.," such note is to beheld, as a contract made in this State, and subject to, and governed by the laws thereof, (p. 24.)

6. The general rule is, that all instruments made and executed in a country, take effect and are to be construed as to their nature, operation and extent, according to the laws of the country where they are made and executed, (p. 24.)

7. Under sec. 3 of ch. 130 of the Code, as amended by sec. 23 of ch. 160 of the Acts of 1882, neither a plaintiff, nor a person for whose use the suit is brought, is a competent witness against a defendant, who is the survivor of himself and a deceased party who with him, was a joint maker of the promissory note on which the action is brought, in regard to any personal transaction or communication, between either of them, and such deceased party. (P-22.)

8. Where a party basin his possession or under his control, evidence, by the introduction of which at the trial he would be able to render certain, a fact material to his success, which is otherwise left in doubt, and he withholds such evidence, the court will upon a demurrer to'the evidence introduced by his adversary, presume that the tact was against him. (p. 28.)

9. A case wherein a party was held to have executed a promissory note in this State, and by departing therefrom and residing in another State bad "obstructed the plaintiff's right" within the meaning of sec. 18 of ch. 104 of the Code, as amended by sec. 18, of ch. 102 of the Acts of 1882.

G. Baylor for plaintiff in error.

White Trapnell for defendant in error.

Woods, Judge:

This was an action of assumpsit brought in the circuit court of Jefferson county on April 26, 1882, by Daniel Heffiebower for the use of Henry Stouffer, against Louis F. Detrick and Anthony Nunemaker, surviving promisors of themselves and one David Rcinhart to recover the amount of a promissory note of $1,000.00 made by tbem to the plaintiff on January 23, 1871, payable twelve months thereafter, with ten per rent. interest from date. At the same time an order of attachment was sued out against the estate of Detrick which was levied upon one C. H. Kable, whom the plaintiff alleged to be indebted to Detrick who was summoned as garnishee. The sheriff returned upon the summons that both defendants were non-residents of the State. At May rules, 1882, the action as to Nunemaker was abated; an order of publi- cation taken against Detrick, and the plaintiff filed his declaration containing one special count alleging that the defendants and Reinhart on January 23, 1871, in said county to-wit, at Kabletown in said county made their certain note in writing, signed with their own proper hands, by which they jointly and severally promised to pay the plaintiff twelve months after the date thereof, the sum of $1,000.00 for value leceived with interest from date," and also the common counts for money lent, and upon an account stated; and two counts upon promises alleged to have been made by the defendants and Reinhart in April, 1880, at Weverton in the State of Maryland, concluding in the usual form. At the July term, 1882, Detrick appeared and pleaded "non assumpsit" and "non assumpsit within ten years." To the first of these pleas the plaintiff replied generally; to the plea of the statute of limitations, the plaintiff filed seven special replications to all of which except the second, the defendant demurred, which demurrer as to the first, third and seventh was overruled, and as to the fourth, fifth and sixth was sustained. Issues were made on the first, second, third and seventh, which on March 3, 1884, were tried by a jury and the the defendant demurred to the plaintiff's evidence, in which the plaintiff joined, and thereupon the jury found for the plaintiff and assessed his damages at $1,235.00 subject to the judgment of the court upon the demurrer to the evidence, and on March 7, 1884, the court entered judgment upon the demurrer in favor of the defendant, to which judgment the plaintiff excepted and tendered his bill of exceptions setting forth all the evidence introduced at the trial.

To this judgment the plaintiff obtained a writ of error and supersedeas.

The plaintiff has assigned various grounds of error which may all be included under two general heads: First, in sustaining the defendant's demurrer to the plaintiff's fourth, fifth and sixth special replications; and second, in rendering judgment for the defendant on his demurrer to the evidence.

The first special replication substantially alleged, that the defendant (Detrick) who before the right of action in the declaration mentioned accrued to the plaintiff, resided in this State, departed from and remained out of the same from January 1, 1872, to the commencement of this suit, and thereby obstructed the plaintiff in the prosecution of his right of action from bringing and maintaining his action against said defendant within the time limited by sec. 18, ch. 104, of the Code, as amended by sec. 18 of ch. 102 of the Acts of the Legislature of 1882.

The second replication is the same in substance as the first, that he was so obstructed by all of the defendants. As no evidence was offered in support of the third replication it need not be further noticed. The seventh replication in substance alleged that the defendant, Detrick, at the time of the delivery ot the note sued on, falsely represented to the plaintiff, that he had signed and delivered it at Kabletown in the State of West Virginia, and that thereafter he continued to reside out of this State, trom the time the right of action thereon accrued, until January 23, 1883, and the plaintiff relying on said representation, and upon the absence of the defendant from this State, was thereby defeated and obstructed from bringing his action on the note from January 23, 1872, until the bringing of this suit, &e, Replications "six" and "four" are in substance and effect identical with replications "three" and "seven" respectively, and the demurrer thereto ought to have been overruled, but as they presented no new issues, the plaintiff was not injured thereby, for although technically good, they were useless, and for that cause ought to have been rejected. The fifth replication alleged that Detrick signed the note in the city of Baltimore, and State of Maryland, and caused and procured it to be delivered to the plaintiff as made by him at Kabletown in West Virginia, and there, and thereafter, said defendant remained and continued out of this State, and in the State of Maryland trom the time the cause of action accrued, until the bringing of this suit, and thereby defeated and obstructed the plaintiff's right of action on said note from January 23, 1875, until the bringing of this suit, &c.

The only substantial difference between this and the "seventh" replication which was properly held good on demurrer, is that it avers that the note was made in the city of Baltimore in Maryland. We can perceive no good rea- son why the demurrer thereto should have been sustained; but as the plaintiff was entitled to prove this fact under his "seventh" replication he has not been injured there-

by:

The only evidence introduced at the trial was offered by the plaintiff", which consisted of the note described in the declaration, with seven receipts for interest endorsed thereon, the first two signed by the plaintiff, and the others by Henry Stouffer, for whose use the suit is brought, the last of which is for the interest up to April, 1880; and the testimony of the plaintiff, and of said Stouffer, and of one Kable, who was in no wise interested in the controversy, and a letter in the hand-writing of said David Reinhart. The plaintiff testified that the note was delivered to him by David Reinhart, at Ripon, in the county of Jefferson in West...