Hughes et al. v. Frum.
| Decision Date | 04 December 1895 |
| Citation | 41 W.Va. 445 |
| Court | West Virginia Supreme Court |
| Parties | Hughes et al. v. Frum. |
A motion in arrest of judgment must be based only on matter apparent in the record.
Recovery may be had by an assignee against an assignor of non-negotiable paper on the common count for mindebitatus assumpsit Overruling that feature in point 2 of the syllabus of Nicholas v. Porter, 2 W. Va. 13.
The action of assumpsit, under the count for money had and received, is an equitable action, and applicable to almost every case where money has been received by one, which, in justice and conscience, ought to be refunded.
A contract capable of performance, and which may be required to be performed within one year, dres not fall under that clause of the statute of frauds (clause 7, chapter 98, Code) requiring an agreement that is not to be performed within a year to be in writing.
A promise to pay the debt of another must be in writing.
A motion to set aside a verdict must specify grounds. Where the record states that it is because improper evidence was admitted, it is too general.
Error based on the giving or refusal of instructions ought to be shown by bill of exceptions giving the instructions and enough of the evidence to show whether they were proper; but where the record otherwise identifies the instruction, and shows an exception, and the whole evidence appears, that will suffice, without such bill of exceptions.
Where a record or other writing makes such reference to another writing by number, or other earmark, so that it may be safely identified, that makes such writing a part of the record or writing referring to it.
9. Assignee Recovery by Assignee. Recourse.
An assignee, by way of recourse, may recover against his immediate or any remote assignor of non-negotiable paper, under chapter 99, section 15, Code.
M. M. Thompson and j. Philip Clifford for plaintiff in error, cited Code, c. 98; 39 W. Va. 659; 40 W. Va. 484.
John Bassel and L. C. Lawson for defendant in error.
Hughes and wife recovered judgment in Harrison Circuit Court against Frum, and Frum obtained this writ of error.
First. The first assignment of error is in overruling a motion in arrest of judgment on the verdict, the motion being based on the theory that the basis of recovery being upon the verbal assignment of a promissory note, and there being no special count in the declaration alleging the assignment and the insolvency of the maker of the note those facts being stated only in the bill of particulars there could be no recovery. I fail to see how this matter could arise on a motion in arrest of judgment. That motion is based on the principle that for reason of law apparent on the record, a judgment can not be given; but in this case was a declaration with only the usual common counts in indebitatus assumpsit; and the bill of particulars containing the only hint of this assignment, being no part of the decla ration, and the ground of recovery appearing only from the evidence, we can not say that the defect or fact precluding judgment appears by record. This matter would arise, however, on the motion to set aside the verdict on the theory of variance between pleading and evidence; that is, that the evidence showed a case not recoverable upon under the declaration in other words, that there was no pleading justifying a recovery upon the case as developed by the evidence. But the point is not well taken, in any view. There being a count for money had and received, there can be a recovery based on the assignment of a chose in action turning out insolvent, whether there was an express or an implied undertaking to stand good for it in case of failure to collect, since it is a case where money has been paid on a consideration failing; and the law says it shall be refunded, and is thus a case of money had and received by one person, which should be repaid, and is therefore, in legal contemplation, received for the use of the party who paid it, and is recoverable under the count for money had and received. Tucker's ornnion, Drane v. Scholfield, 6 Leigh, 895; opinions in Maekiev. Davis, 2 Wash. (Va.) 281; Roane, J., in McWilliams v. Smith, 1 Call, 125. The case just cited from 1 Call is pointedly decisive of the question logically.
I know that in Nichols v. Porter, 2 W. Va. 13, the syllabus makes the court hold that there can not be a recovery on the common counts, but there must be a special count, setting out the assignment and failure to collect, etc.; but the opinion does not seem to decide so, and we must say that clause in the syllabus is neither on the nature of the case, nor on authority, sustainable. It is a case of money paid on a consideration failing, which either express promise, or a promise which the law raises, requires to be refunded, and, under all authorities touching the count for money had and received in indebitatus assumpsit, is recoverable under that count. Jackson v. Hough, 38 W. Va. 236 (18 S. E. 575); 2 Greenl. Ev. § 117.
If it be said that the common count is fo general that it gives no notice of the real character of the claim, and thus works a surprise on the defendant, I reply that section 11, chapter 125, Code, requires a bill of particulars, and in its absence no proof will be allowed.
Second. The second assignment of error is the refusal of the court to set aside the verdict because contrary to law and evidence. Here comes up the question of the defendant's liability on the merits. The theory the main if not the only one of the plaintiff, for recovery, is that Frum assigned Miss Hughes (later Mrs. McDonald) a note which proved worthless. Did he assign it? Frum was guardian of Miss Hughes. He told her that when she should become of age he wanted to settle up with her, as her guardian, and, if she would sign a receipt to enable him to settle with a commissioner, he would still be responsible to her for her money; and when she became of age she executed such receipt of satisfaction of Frum's obligation as guardian, and he gave her his note for the money, as she preferred him to keep the money. Frum had lent part of his ward's money to Gauthrop, part to Willis. He informed her of this. When Frum's note to her matured, Frum wanted to pay it, but she did not wish the money; and he, desiring to relieve himself of his debt to her, informed her that Willis held a certain land note on Nixon, and asked her how she would like to buy it, or suggested that she buy it of Willis in discharge of the money he had borrowed of Frum as her guardian; expressing to her his definite opinion that the Nixon note was good, and that Willis was good. She agreed to take the Nixon note as so much paid on his note, and a time was named for her and Willis to meet at Frum's to exchange notes; but, as she was then to be absent on a visit, she sent her brother to attend to the business. Willis attended, and so did Gauthrop; the two debtors being there showing that it was intended by Frum to settle his note held by his late ward. Gauthrop gave his note to Miss Hughes for the money of hers which he had borrowed of Frum, Willis and Frum becoming sureties in it. It had been intended to end Willis' liability for the money he had borrowed of Frum as guardian, for which he had executed his note to Frum, by the assignment by Willis to Miss Hughes of the Nixon note; but, as Willis had not the note there, he executed to Miss Hughes his note, with Gauthrop and Frum as sureties; Willis agreeing with Frum to get the Nixon note, and with it lift the note just mentioned.
Frura's note originally given to Miss Hughes was delivered up. The two notes of Gauthrop and Willis were delivered to Miss Hughes.
Clearly, the acceptance of these new notes, with new parties, in payment of the note which Frum had given Miss Hughes, and the surrender of that note, ended the debt which had theretofore existed, owing from Frum to her. Bank v. Good, 21 W. Ya. 455. The circumstances, too, show that the parties treated it as payment. Later, Willis, with Miss Hughes' consent, lifted the note which he, with Gauthrop and Frum as sureties, had given her, by the assignment and delivery to her of the Nixon note. Willis indorsed his name on this Nixon note, and delivered it to Frum for Miss Hughes. She was not present, but the matter had been presented to her, and she had consented to take the Nixon note in payment of the note of Willis, Gauthrop, and Frum to her, and she intrusted Frum with this Willis note, to exchange it for the Nixon note. Frum acted for her, certainly, in the character of friend and agent. The lady herself says that Frum left it to her to do as she pleased about taking this Nixon note.
Now, how does this state of facts make Frum an assignor of the Nixon note? He never s: >ld or agreed to sell or assign it, as he did not own any interest in it; but Willis, who alone did own it, agreed to assign and did assign it. Never a word did Frum utter as a word of sale or assignment of this Nixon note. He had told Miss Hughes that he had lent her money to Willis, and that Willis would assign this note to her in discharge of Willis' note to her for Frum's obligation to her had already been discharged by Willis' note, and in it Frum was only surety; and, when he signed it as surety, it was with the understanding that Willis would produce the Nixon note, and with it lift this note.
An assignment of a debt need not be in any particular form or words, and may be oral or written. Bentley v. Ins. Co., 40 W. Va 729 (23S. E. 584). But there must be some act importing a particular intent to sell and assign; the party must intend to dispose of the debt, as an act...
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