Long v. Campbell
| Decision Date | 22 March 1893 |
| Citation | 17 S.E. 197,37 W.Va. 665 |
| Parties | LONG v. CAMPBELL et al. |
| Court | West Virginia Supreme Court |
Submitted January 28, 1893.
Syllabus by the Court.
1. A middle name is generally no part of the name of a person.
2. If there be a variance, as to the middle name of the payee of a note, between the description of the note in the declaration and the note itself, and such variance would even be deemed material, and it is not taken advantage of in some way before judgment, it will not be ground for reversal of the judgment being cured by section 3, c. 134, of the Code. This is so, though the judgment was rendered upon defendant's demurrer to the plaintiff's evidence.
3. If the demand in the declaration in an action of debt be for less than the right of recovery shown by the note described in it, it would be disregarded on demurrer by reason of section 29, c. 125, and as the variance does not aggrieve the defendant, but is to his benefit; and also, in the absence of a demurrer, it is cured after judgment by section 3, c. 134 of the Code.
4. If a declaration describe a note of several parties as several while the note is joint and several, and no objection is made on account of the variance before judgment, though it be rendered on such demurrer to evidence, it is unavailing to reverse the judgment by reason of section 3, c. 134, of the Code.
5. Parties make a nonnegotiable note, and other parties put their names on its back. It is blank as to payee's name and is to be filled with the name of the person who should furnish money upon it. The parties intended it to be used to raise money upon it. It is delivered to one of the makers to be so used. The name of the party agreeing to furnish money upon it is inserted in it as payee, and it is delivered to him, he furnishing the money upon it. He has right to treat all as original promisors or makers, or some as makers and others as guarantors, as he chooses, and sue them as such.
6. No understanding between parties making and so indorsing the note, that these so indorsing it shall be liable only as guarantors, will avail against the payee, unless before delivery of the note he knows of such understanding.
Error to circuit court, Cabell county.
Action by James W. Long against E. M. Campbell and others on a promissory note. There was judgment for plaintiff, and defendants bring error. Affirmed.
Elliot Northcott, E. S. Doolittle, and John B. Laidley, for plaintiffs in error.
H. R. Howard and Brown, Jackson & Knight, for defendant in error.
James W. Long brought an action of debt against E. M. Campbell and others, and upon a demurrer by the defendants to the plaintiff's evidence, judgment was rendered for the plaintiff, and the defendants sued out this writ of error.
The first point made by appellants against the judgment is based on three alleged variances between the allegations and proofs. One of such variances is that the declaration describes a note as made to the plaintiff suing by the name of James W. Long, while the note produced in evidence is one to James Long. A middle name, or its initial, is no part of a name. Franklin v. Talmadge, 5 Johns 84, citing Co Litt. 3a; Rex v. Newman, 1 Ld. Raym. 562; Vin. Abr. tit. "Misnomer," p. 6, pl. 5, 6. For purposes of identification the middle name may be very important, as where the question is which one of two men of the same name, except that they have different middle names, or only one has a middle name, did a certain act, or was injured or sued, or the like. And I cannot say that the rule is very reasonable, as a man, contrary to the idea stated in the old books that a man can have but one Christian name, may by baptism, confirmation, or otherwise take and use two as well as one Christian name; but the rule stated seems to be well settled. I do not forget that the question in this case occurs in the description of a writing which the rule of pleading requires to be exactly accurate; but if once we say that a middle name is no part of the name, it is as though it were left out. In Keene v. Meade, 3 Pet. 1, it was strongly indicated in the opinion that "the entire omission of a middle letter is not a misnomer or a variance." In Milk v. Christie, 1 Hill, 102, it was held that a "middle letter in a name is no part of it, and a variance in this respect between a written contract, as set forth in the pleadings, and that produced in evidence, is immaterial." So in Bratton v. Seymore, 4 Watts, 329; Thompson v. Lee, 21 Ill. 242; McKay v. Speak, 8 Tex. 376. In O'Bannon v. Saunders, 24 Grat. 138, a declaration described a judgment as against John S. Barbour, whereas it was against John S. Barbour, Jr., and it was held that "Jr." was no part of the name, and there was no variance. Though the question is not precisely the same, it has been held in even criminal cases that where the person injured is named with a middle name, and the proof is that he has no middle name, or vice versa, the variance is immaterial. Tucker v. People, 122 Ill. 583, 13 N.E. 809; Choen v. State, 52 Ind. 347; People v. Ferris, 56 Cal. 442. In Ming v. Gwatkin, 6 Rand. (Va.) 551, a variance between writ and declaration as to initial of middle name was held fatal. The case is doubtful. Just the contrary was held in Dabneys v. Knapp, 2 Grat. 355, as to difference in names of Samuel P. and Samuel B. Christian. The Ming Case was cited, but not followed. Besides, the Ming Case was under a statute which did not cure a defect in judgment by default. Hatcher v. Lewis, 4 Rand. (Va.) 152; Wainwright v. Harper, 3 Leigh, 270.
Let us grant, however, that at common law this would be a variance. What then? It is cured by the statute of jeofails. The defendants pleaded nil debet and payment. Chapter 134, § 3 of the Code, provides that "no judgment or decree shall be stayed or reversed *** for any defect, imperfection, or omission which might have been taken advantage of on demurrer or answer, but was not so taken advantage of." This action was upon a promissory note. If it had been based on a specialty for this variance, the proper course would have been to crave over of the specialty, and demur for the variance, or object to the admission of the instrument as evidence, or an instruction to the jury to disregard it, or, which is the same, striking it out as evidence, 4 Minor, Inst. 814. But this case was decided upon the defendants' demurrer to the plaintiff's evidence; and it is argued that on a demurrer to evidence the court must take notice of the variance, and disregard the bond, as if there had been such demurrer or objection to its admission or instruction to disregard it, and there had been a general verdict. The only difference is that in this case the court tried the case on such demurrer, but there was no objection to the note or variance in any form. Here stands the judgment. The statute is directed to this court as the appellate tribunal, and if this court would execute the purpose of the statute it would not regard the fact that the judgment was rendered upon demurrer to evidence. The plain purpose of the statute is that, after trial and judgment, such judgment shall not be reversed for defects which could have been used to defeat a judgment, but were not so used, to cure slips and missteps not assigned before judgment, and not entering into the essential justice of the case. In case of judgment upon demurrer to evidence there has been a jury trial, on which objection to a variance could have been made, and the only difference between such case and one without demurrer to evidence is that the verdict is conditional upon such demurrer. So I do not see why the fact that the judgment is upon demurrer to evidence should take the case out of the benefit of the statute. The party has never hinted his reliance upon the variance until he reaches the appellate court. See what hardship and injustice would be inflicted by holding otherwise. The party does not crave oyer, and demur, and makes no objection to the introduction of the bond before the jury. Had he done so, the other party would ask leave to amend, or suffer nonsuit; or if he later had doubts, after such objection, he could ask to withdraw his joinder in demurrer, and save himself from the hurt of the variance; but, in the absence of any such objection, he goes on to judgment, and then his adversary asks this court to reverse the judgment, and render final judgment for him upon such demurrer to evidence. But it is said that the statute cures only defects which could have been taken advantage of by demurrer, and that, as in an action upon an unsealed instrument, there need be no profert, and that craving oyer and demurring because of variance between the declaration and instrument sued upon is applicable only to an action on a sealed instrument, and therefore the statute does not apply to such case. Literally it does not, but it is a highly remedial statute, and ought to be liberally construed and applied to attain its purpose. Can we reasonably say that the lawmaker intended it to cure defects in an action of debt on a bond, and leave the same defects uncured in an action of debt on a note? I think not. Shall the mere fact that technically there can not be oyer and demurrer for a variance in an action upon a parol contract, but the objection must be taken by objection to the instrument's going in evidence, or by instruction to disregard it if already in evidence, thwart the curative quality of the statute? I think not. We must say that such a case, though not within the letter, yet is within the spirit, of the statute. I think Judge Haymond's opinion in Holliday v. Myers, 11 W.Va. 276, will plainly sustain us in this ruling. He properly gives the statute in question broad and...
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