Houston v. McNeer.

• Decision Date: 03 April 1895
• Citation: 40 W.Va. 365
• Court: West Virginia Supreme Court
• Parties: Houston v. McNeer.

40 W.Va. 365

Houston

v.McNeer.

Supreme Court of Appeals of West Virginia.

Submitted January 31, 1895.

Decided April 3, 1895.

1. Assignment ok Bond Without Recourse False Repre-sentation.

The plaintiff took from the defendant a written assignment without recourse of a bond on M., and sued) to recover his: money back on the ground of! fraudulent representation. To avoid such contract, the representation must be of a material fact, and be false within the knowledge of defendant, and be made with intent on his part that plaintiff should act upon it, which representation the plaintiff, in ignorance of its falsity, relies upon, and is thereby misled to his injury and damage.

2. Assignment of Bond Without Recourse Parol Evi-dence.

Such written assignment without recourse can not be changed in its terms by parol evidence.

3. Assignment of Bond Without Recourse.

By such contract the assignee takes upon himself all risks of collecting the money, provided the instrument assigned was in fact what it seemed to be a genuine, valid, subsisting debt.

4. Assumpsit Express Warranty.

General indebitatus assumpsit does not lie for the breach of an express contract of warranty.

A. F. Mathews and John Osborne for plaintiff in error, cited 25 W. Va. 285, 286; 2 Rob. Prac. (New) 449, 450, 454, 466.

John W. Harris for defendant in error, cited 25 W. Va. 543; 19 W. Va. 438; Big. on Fraud p. 466; 2 Rob. Prac. (New) 274; 2 Pars. Bills & Notes 21; 27 Gratt. 878.

Jos. I). Logan for defendant in error, cited Greenl. Ev. (14th Ed.) § 275 et seq.; 30 Gratt. 272; 16 W. Va. 651; 6 Graft. 633-34; 13 Graft 705; 27 Gratt. 878; 2 Hen. & Mun. 189; 6 Leigh 230; 1 Pars. Conts. 263; 3 Min. Inst. 406; 1 Rob. Prac. 477; 9 Leigh 473; 5 B. Mon. 402; 31 W. Va. 428.

Holt, President:

This was an action of indebitatus assumpsit in the Circuit Court of Monroe county, tried on plea of non assumpsit; verdict for defendant; verdict set aside; again tried, and verdict for defendant, which the court refused to set aside, but gave judgment, to which this writ of error was allowed the plaintiff.

The declaration contains the common counts, including the count for money had and received, concluding with a special count in indebitatus assumpsit, as follows: "And for that the said defendant on the day of, 1886, assigned to the said plaintiff, for valuable consideration, to wit, four hundred and fifteen dollars, then and there paid to the said defendant by the said plaintiff, a certain note for the sum of four hundred and ninety nine dollars and forty five cents, executed to the said defendant by one R. T. McNeer on the 7th day of January, 1886, and due and payable on demand; and the plaintiff avers that at and before the said assignment the said defendant told the plaintiff, and represented to him, that he, the said defendant, was not indebted to the said R. T. McNeer in any way; that there were no offsets to the said note; that the said note was then immediately collectible, and that no objection could be made by the said R, T. McNeer to its immediate payment; that in consideration of said representation the plaintiff took the said note without recourse. And the plaintiff further avers that the said statements and representations were untrue, and well known so to be by the defendant; that the defendant was at the date of the said assignment, and afterwards, indebted to the said R. T. McNeer to an amount greater than that of the said note, so that the said R. T. McNeer refused to pay the said note on account of the said indebtedness, when thereunto afterwards requested by the said plaintiff, and that it would have been a vain thing for the said plaintiff to have sued the said R. T. McNeer. And the plaintiff avers that, by reason of the said false statements and representations, the said plaintff suffered loss to the amount of the said sum of money paid to the said defendant; and the said defendant became liable to pay to the plaintiff the said sum, with the interest due thereon. And the said defendant, afterwards, in consideration of the prem- ises, respectively promised to pay the plaintiff the said sums respectively upon demand."

The bond assigned by defendant, (McNeer, to plaintiff, Houston, with the assignment thereof, without recourse, is as follows: "On demand, for value received, I promise to pay A. A. McNeer the just and full sum of four hundred and ninety nine dollars and forty five cents. Witness my hand.and seal this seventh day of January, 1886.

"R. T. McNEER (Seal.)

"Assigned without recourse.

"A. A. McNEER, "A. C. HOUSTON."

The only witnesses examined were plaintiff and defendant on their own behalf. Plaintiff's evidence tends to prove that the debtor, R. T. McNeer, was insolvent. He bought the note for the purpose of letting R, W. Bobbitt have it, who was indebted to R. T. McNeer, but such object was not made known to defendant. Plaintiff agreed to take the note if no objection of any sort could be made to its immediate payment and defendant told him that no objection at all could be made to its immediate payment, that R. T. McNeer owed him (defendant) still more besides the amount of that note. Thereupon plaintiff took it without recourse with that understanding, and let Bobbitt have it in the same way. Bobbitt offered the note in part payment to R, T. McNeer in his settlement with him, but R. T. McNeer refused to take it. Plaintiff then took it back from Bobbitt, and wrote to defendant, A. A. McNeer, about the matter, who came to see plaintiff about it. Plaintiff told him that he took it with the understanding that no objection could be made to its immediate payment; that if he had known about the Calder land matter, he would not have taken it; and that defendant must take it back, which he refused to do.

The Calder land matter seems to have been a debt due to a commissioner who had sold the Calder land under a decree of court, which, as appears from argument of counsel, had been bought by R. T. McNeer at such sale; and the sale, by agreement of the commissioner and all interested, had been turned over to defendant, A. A. McNeer, and one John H. Shrader, who, with the consent of the commissioner, assumed the payment of the purchase money, relieving R. T. McNeer from the payment thereof.

Defendant's evidence tended to prove that plaintiff agreed to take an assignment of the note without recourse, at a discount of ninety dollars; that he did not know what plaintiff wanted with it; did not tell plaintiff that no objection could be urged to its immediate payment; that plaintiff did not ask anything of the kind; that he did not owe R. T. McNeer anything at the time of the assignment, but R. T. McNeer owed him more than six hundred dollars over and above the note at the time he assigned it to plaintiff; and that the Calder land matter was paid, or about paid, when he assigned the note. R. T. McNeer was not sued on the note.

Plaintiff asked the court to give the following instructions, Nos. 1 and 2, to the jury. The court refused and plaintiff excepted. No. 1: "If the jury believe from the evidence that the defendant, A. A. McNeer, represented to the plaintiff, as an inducement to the contract of assignment, that he (the defendant) was not indebted to R. T. McNeer, while at the same time he was so indebted then the jury must find for the plaintiff." No. 2: "If the jury believe from the evidence that, as an inducement to the contract of assignment, the defendant told the plaintiff that there could be no objection on the part of R. T. McNeer to the immediate payment of the note assigned, while at the same time there" were unsettled transactions between the defendant and R. T. McNeer which would prevent the immediate payment of said note by said R. T. McNeer, then the jury must find for the plaintiff."

On motion of defendant, and against plaintiff's objection, the court gave the jury the three following instructions, and plaintiff excepted: Instruction A: "The court instructs the jury that if they believe from the evidence that, in the spring of 1886, plaintiff and defendant entered upon a negotiation for the sale and assignment of the bond from R. T. McNeer to A. A. McNeer, offered in evidence in this cause, and that the result of said negotiation was the written agreement upon the back of said bond, signed by the plain- tiff and defendant, then the legal effect of said written agreement is that if said bond was due and unpaid at the time of said agreement, the plaintiff, Houston, took upon himself the risk of collecting said bond, and the terms of said written agreement can not be changed or altered by parol evidence." Instruction B: "The court instructs the jury that if a bond is assigned without recourse, it exempts the assignor from all liability by reason of the insolvency of the maker of the bond."...