Lightner v. Lightner

• Decision Date: 13 March 1962
• Docket Number: No. 12093,12093
• Citation: 146 W.Va. 1024,124 S.E.2d 355
• Court: West Virginia Supreme Court
• Parties: Thomas H. LIGHTNER v. Lillie E. LIGHTNER.

Page 355

124 S.E.2d 355

146 W.Va. 1024

Thomas H. LIGHTNER v. Lillie E. LIGHTNER.

No. 12093.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1962.

Decided March 13, 1962.

Syllabus by the Court.

1. Between the parties to a negotiable note the consideration is open to inquiry.

2. The defense of want of consideration is provable under the general issue, and in a notice of motion for judgment proceeding a counter affidavit filed by the defendant is tantamount to, and will be treated in effect as, a plea of the general issue.

3. A negotiable note, as between the payee and the maker, is deemed prima facie to have been issued for a valuable consideration, and will be so held in the absence of evidence to the contrary.

4. The burden of showing want of consideration for a negotiable promissory note rests upon him who attacks it on that ground. When, however, evidence has been introduced by the defendant to rebut the presumption that such note was issued for a valuable consideration the burden is upon the plaintiff to satisfy the jury by a preponderance of the evidence that there was a valuable consideration for the note.

5. A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.

6. When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.

7. A note which expresses no time for payment is an instrument payable on demand under Section 7, Article 1, Chapter 46, Code, 1931.

8. A promissory note payable on demand becomes due and payable upon its delivery and the statute of limitations begins to run upon such instrument from the date of its execution and not from the time of demand; but though a promissory note payable on demand may become due and payable upon delivery for the purposes of suit, such instrument is not overdue, within the rule which subjects the transferee of overdue paper to defenses available between the original parties, until a reasonable time has elapsed.

9. When an instrument is payable on demand, it is not necessary to aver and prove a demand and the institution of a suit upon such instrument constitutes a sufficient demand. After sufficient demand an instrument payable on demand becomes an overdue instrument.

10. Ordinarily an assignee acquires no greater right than that possessed by his assignor, and he stands in his shoes; and an assignee takes subject to all defenses and all equities which could have been set up against an instrument in the hands of an assignor at the time of the assignment.

11. Parol evidence to prove an agreement between the maker and the payee of a note that the maker should not be required to pay it is inadmissible under the rule inhibiting the introduction of parol evidence to contradict, vary, add to, or detract from the terms of an unambiguous written instrument.

Haynes & Ford, Sheldon E. Haynes, Lewisburg, for appellant.

J. M. Holt, Lewisburg, for appellee.

HAYMOND, Judge.

In this notice of motion for judgment proceeding instituted in the Circuit Court of Greenbrier County in May, 1960, the plaintiff, Thomas H. Lightner, the holder of a promissory note in the principal sum of $10,900.00, payable to the order of M. S. Lightner and signed by the defendant, Lillie E. Lightner, as maker, seeks a recovery against the defendant for the amount of the note and accrued interest. With the notice the plaintiff filed his affidavit that there is justly due, owing and unpaid by the defendant the sum of $16,820.50, the aggregate amount of principal and interest, after deducting all payments, credits and sets-off made by the defendant or to which she may be entitled. The defendant filed her counter affidavit that there is no sum due by the defendant to the plaintiff upon the demand stated in the notice and affidavit of the plaintiff.

Without objection the case was tried according to the procedure which existed before the effective date of the recently adopted West Virginia Rules of Civil Procedure and upon the trial the jury returned a verdict in favor of the defendant. On August 18, 1961, the circuit court overruled the motion of the plaintiff to set aside the verdict and grant him a new trial and rendered judgment upon the verdict and awarded costs in favor of the defendant. From that judgment this Court granted this appeal upon the application of the plaintiff.

The note which forms the basis of the claim of the plaintiff and which was appraised as an asset of the Estate of M. S. Lightner, deceased, is in this form:

'$10,900.00

Ronceverte, W. Va., June 3, 1950 _____ after date I promise to pay to the order of M. S. Lightner Ten Thousand and nine hundred and No/100 Dollars. Negotiable and payable at The First National Bank in Ronceverte, W. Va. The makers and endorsers hereby severally waive presentment, demand for payment, protest, notice of protest and notice of any payment of this note. Value received. No. Interest in Greenhouse property. Renewal No. ___ Due _____.

Lillie E. Lightner.

'We, the endorsers of this note, do each and severally waive protest thereof, and agree that time of payment may be extended without notice.

'Pay to the order of Thomas H. Lightner, without recourse. Birdie H. Lightner, Admx. M. S. Lightner Estate.'

In defense of the claim of the plaintiff the defendant contends and undertook to show that the note was not based upon a valuable consideration and that at the time it was executed and delivered there was an oral agreement between the parties to it that the defendant would not be required to pay any part of the note.

The plaintiff insists that, in the absence of a special plea by the defendant of failure of consideration, evidence to show that the note was not based upon a valuable consideration was inadmissible and that evidence of any verbal agreement between the parties to the note at the time of its execution and delivery that the defendant would not be required to pay it was likewise inadmissible because violative of the parol evidence rule.

Sometime in March 1950, before the execution and delivery of the note, M. S. Lightner and the defendant Lillie E. Lightner, who were brother and sister, arranged to purchase property to be used by them as a residence at a price of approximately $22,000.00. The deed to the property which is referred to as the 'greenhouse property' was made to the defendant and it appeared that she paid $10,000.00 of the purchase price and that M. S. Lightner paid the residue which was more than the principal amount of the note. After this purchase was concluded the defendant executed and delivered the note for $10,900.00 to M. S. Lightner, who had it in his possession until his death in 1958. After his death the note was appraised at its full value as an asset of the estate of M. S. Lightner, and his wife, Birdie H. Lightner, as administratrix of his estate, instituted an action against Lillie E. Lightner to collect the note. In that action, however, the administratrix took a nonsuit and later transferred the note, without recourse, to the plaintiff who paid her $100.00 for the note. After he purchased the note the plaintiff by his attorney demanded payment of the defendant and after her refusal to pay the note the plaintiff instituted this action in May 1960. Before he purchased the note the plaintiff knew that suit had been instituted by the administratrix of the M. S. Lightner Estate; that there had been a nonsuit in the action; that the defendant claimed that she did not owe the note; and that she would refuse to pay it.

Over the objection of the plaintiff the defendant introduced the testimony of three witnesses, one of whom was the defendant, that at the time the note in suit was executed and delivered it was the intention of the parties to the note that it was not to be paid by the defendant or collected by the payee, M. S. Lightner, and that on subsequent occasions he stated that he did not intend to collect the note from the defendant. It appears, however, from the testimony of the defendant and another witness who testified in her behalf that the note was given to and held by M. S. Lightner to protect him in his investment in the greenhouse property, as a residence for M. S. Lightner and his wife and the defendant, in any settlement of the estate of the defendant, who testified that she had not made a will and that in the event of her death intestate her heirs would have been persons other than M. S. Lightner. The defendant testified that when the property was purchased the deed was made to her; that it was to be her home and her property; and that M. S. Lightner never claimed to own any interest in it. Concerning the circumstances attending the execution of the note she was asked this question: 'Q. Now, Miss Lillie, I wish you would tell the jury, in your own words, just what the circumstances were when the note involved in this case was signed by you?' To that question she gave this answer: 'A. Well, Marvin presented me with this note, saying that he felt like he ought to have something. He felt like he would like to have some assurance of some benefit from it in case anything happened to me.' She also testified that: 'He just had it for safe-keeping, just to make him safe.'

After the conclusion of the evidence and the court had acted upon the instructions offered by each of the parties but before the instructions which the court had decided to give were read to the jury or the case had been argued by counsel, the court orally instructed the jury to disregard the testimony of the three witnesses in behalf of the defendant in regard to statements made by M. S. Lightner that he never intended to collect the note and other statements...