Kidd v. Beckley.
| Decision Date | 17 March 1908 |
| Citation | 64 W.Va. 80 |
| Parties | Kidd v. Beckley. |
| Court | West Virginia Supreme Court |
Where a declaration in debt purports to be on a writing under seal, the making and signing thereof are not necessary avermentsand whether a paper thus declared on as a sealed contract is a simple contract, can not be raised by demurrer. (p. 82.)
An instrument declared on as a "writing obligatory" implies an instrument under seal: and where the pleading thus calls for an instrument under seal and the proof shows one not sealed, or vice versa, there is a fatal variance. (p. 82.)
It is not necessary, in a suit by the holder or payee against the maker and irregular in dorser of a promissory note, to render such irregular endorser liable as maker, that the declaration should allege either that such irregular endorsement was prior to the delivery of the paper or that the plaintiff had elected to treat him as maker such prior endorsement being an evidential fact provable under a declaration charging such endorser as maker, and institution of suit being sufficient evidence of such election. (p. 82.)
Where a note not negotiable is thus irregularly endorsed, and left by the endorser in the hands of the maker to be delivered only upon condition of the maker securing others to endorse the same, he constitutes such maker his agent for that purpose, and the payee will take the same unaffected by any such agreement or understanding, unless before delivery he has notice thereof, or, either from the instrument or in some other way is put upon inquiry as to whether such delivery was authorized. (p. 83.)
Error to Circuit Court, Raleigh County.
Action by J. W. Kidd against John Beckley and others. Judgment for plaintiff against Beckley, and he brings error.
Reversed and a new Trial Awarded.
John W. Ball and File & File, for plaintiff in error. M. F. Matheny, W. H. McGInnIs, and E. O. PhLegaR, for defendant in error.
The plaintiff's declaration in debt alleged that on June 27, 1906, the defendants, C. C. Allen, C. M. Allen and John Beckley, "by their certain writing" obligatory," promised to pay to the order of the plaintiff eight months after date thereof with interest $145, for value received. Beckley, besides his demurrer overruled, pleaded nil debet, and also filed two special pleas the first, that said C. C. Allen, by fraudulent representation of which plaintiff had notice, and without consideration, had procured from him the writing sued on; the second, non est factum. The other defendants were not served with process, and did not appear. Upon issues joined on these pleas, a trial was had before the court in lieu of a jury waived. The court found for the plaintiff against Beckley the sum of $147.09, and, judgment being pronounced accordingly, he has brought the case here for review.
The point upon the demurrer is that the declaration does not allege defendants made and signed the note. Good pleading and approved forms require this where the action is upon a note. Hogg Pl. & F. 267; 4 Rob. Pr. 194-5; 14 Enc. Pl. & Pr. 463. But the declaration in this case purports to be upon a writing under seal, and as such the making and signing thereof do not seem necessary averments. Hogg Pl. & F. 265; 4 Rob. Pr. 191. Whether a paper declared on as a sealed contract is a simple contract, can not be raised by demurrer. Grubbs v. Insurance Co., 94 Va. 593. The demurrer, therefore, was rightly overruled.
On the trial the plaintiff, notwithstanding objection by Beckley, was permitted to read in evidence the following note not under seal, the only instrument that appeared:
endorsed on the back, "JOHN BECKLEY." The objection to this evidence is that it is fatally variant from the instrument declared on, in two particulars: First, that the declaration calls for a "writing obligatory, "while the note offered is not under seal; second, that the declaration charges the defendants as joint makers, and, although Beck- ley appears an irregular endorser, and if his endorsement was before delivery (unless otherwise agreed) would be rendered liable as joint maker at the election of the plaintiff, nevertheless the declaration is deficient in not alleging that the note was signed and irregularly endorsed before delivery, and that the plaintiff elected to treat Beckley as joint maker. We think the first point good. The technical phrase " writing obligatory" implies an instrument under seal. 8 Words & Phrases 7543; 21 Am. & Eng. Enc. L. 758; Stull v. Wilcox, 2 Ohio 569; Hart v. State, 20 Ohio 49;.Phillips v. Guano Co., 110 Ala. 521. And where the pleading calls for a sealed instrument and the proof shows one not sealed, or vice versa, there is a fatal variance. 22 Enc. Pl. &Pr. 627 and notes; Stall v. Wilcox, Hart v. State, and Phillips v. Guano Co, supra.
On the second point, it is claimed that endorsement before delivery and election to treat the endorser as maker must be alleged, as well as proven independently of the paper, as a condition of recovery, and that the plaintiff will not be permitted to prove any such material fact not alleged. The authorities cited for this proposition are: Stephen Pl. 133; Bar nam v. Railroad Co., 5 W. Va. 13; White v. Romans, 29 W. Va. 571; which but lay down the general rule that the declaration must allege all circumstances necessary for support of the action. The two cases cited from this Court were actions in tort; they affirm in general terms, what is true in all forms of civil action, that the declaration must allege all circumstances necessary for support of the action or to constitute the cause of complaint. This rule is clearly stated in 1 Chy. PI. (16th Am. Ed.) 236, 270.
But the questions remain whether the fact of irregular endorsement before delivery, necessary to render an endorser liable as maker, and the plaintiff's election to so treat him, must be pleaded; or whether the charge in the declaration that such irregular endorser made the note sued on, is, in connection with institution of suit, a sufficient averment under which such material facts may be proven. It is stated in 8 Cyc. 116, upon the authority of numerous cases cited from Iowa, Massachusetts, Missouri, New York, Oregon and South Carolina, that one whose name irregularly appears upon a promissory note, or who placed it thereon before delivery for the purpose of giving it credit, must be charged according to the actual intention, by special averment showing the facts relied on to fix his liability. The cases there cited which I think particularly applicable to the doctrine of the text are Cawley v. Costello, 15 Hun. 303; Security & Trust Co. v. Storm, 81 Hun. 33; McMoran v. Lange, 48 N. Y. Supp. 1000; Twogood v. Coppers, 9 Ia. 415. Approved forms for declaration against anomalous endorsers given in 3 Enc. Forms 307, 308, contain such special averments. There is a short form given at page 308 from South Carolina, but from a note at page 286, it appears that this form is based upon special provisions of the code of civil procedure of New York and other states there referred to. Upon these authorities, Judge McWhorter and I are inclined to the opinion that, where such irregular endorser is sued as maker, the declaration should allege the fact of endorsement before delivery.
But our associates are of a different opinion. They hold that such fact is only an evidential one which may be proven under a declaration charging such endorser as maker. Our statute, section 29, chapter 125, Code, provides that "on a demurrer, unless it be to a plea in abatement, the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has heretofore been deemed mispleading or insufficient pleading or'not, unless there be omitted something so essential to the action or defense that judgment according to law and the very right of the cause can not be given." But it has been declared by this Court in numerous cases that this section does not dispense with averments necessary to show a cause of action. Burton v. Hansford, 10 W. Va. 475; Spiker v. Bohrer, 37 W. Va. 258; Smoot v. McGraw, 48 W. Va. 144. But, if the declaration omits nothing so essential to the action that judgment can not 'be given thereon according to law and the very right of the case, it will be sufficient. Boster v. Railroad Co., 36 W. Va. 318; Poling v. Railroad Co., 38 W. Va. Davidson v. Railway Co., 41 W. Va. 407. Our cases relating to such irregular endorsements hold that, in order to render one who thus endorses a note liable as maker, it must have been signed by him before delivery. Burton v.Hansford, supra; Long v. Campbell, 37 W. Va. 665; Roanoke Co. v. Wat- kins, 41 W. Va. 787; Miller v. Clendennin, 42 W. Va. 416; (Holding v. Pottery Co., 60 W. Va. 317; Peters v. Coal Co., 61 W. Va. 392. The doctrine of our cases, it is said is that one who thus irregularly endorses commercial paper renders him self prima facie liable as maker. Golding v. Pottery Co.. and Roanoke Co. v. Watkins, supra. Hence, the Court concludes it is unnecessary to allege the fact of endorsement before delivery. It is undoubtedly a general rule that only the legal effect of the instrument sued on need be alleged; and it would be correct to say that, if endorsement before delivery is only an evidential fact, it would be unnecessary to allege it. 1 Chy. Pl. 407; Hawker v. Railroad Co., 15 W. Va. 635; Yeager v. Bluefield. 40 W. Va 485; Snyder v. Electrical Co., 43 W. Va. 661; Perns v. Gas Coal Co., 27 W.Va. 285. It was held in Quesenberry v. Wood, decided" at the present...
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