Long v. Campbell et al.
| Decision Date | 22 March 1893 |
| Parties | Long v. Campbell et al. |
| Court | West Virginia Supreme Court |
Name.
A middle name is generally no part of the name of a person.
Variance Declaration Reversal Pleading.
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.
Variance Declaration Reversal Pleading.
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. Variance Declaration Reversal Pleading.
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. Promissory Note Indorsers Guarantors.
Parties make a non-negotiable 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 intend 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. Promissory Note Indorsers Guarantors.
No understanding between parties making and so indorsing the note, that those 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.
J. B. Laid-ley for plaintiff in error:
I. The allegata and probata, in matters of substance, must sabstantially agree; in matters of description must exactly
agree. lib My. Fed. Dec. 3267; 3 Bob. Pr. (New) 563, 558; 1 Iredell 26; 1 T. R. 447; 9 East 157; Green. Ev. P't. 2, ch. 2; 41 Am. Dec. 128; 74 Am. Dec. 77; 4 Wall. 642; 91 IT. S. 294; 6 Leigh 61; 6 Rand. 551; 71 Am. Dec. 347; 10 East 83; 2 Spears 46; 29 Am. Dec. 126; 14 Pet. 43; 1 Cranch 283; 7 Cranch 208; 3 Call. 378; 65 Am. Dec. 387; 6 Leigh 316; 2 Cranch 229; 27 W. Va. 436; 4 Call. 217; 3 W. Va. 285; 8 W. Va. 475; 8 W. Va. 568; Ilempst. 294; 7 Taunt. 385; 3 Taunt, 504; Lutw. 275; Willes 554; Cro. Jac. 640; Cro. Jac. 558; Cro. Eliz. 897; 34 Hen. VI, 19 PI. 36; 3 Hem VI 25 PI. 6.
II. A joint action does not lie, in this State, against the makers and indorsers of a non-negotiable note. Code c. 99, ss. 7, 11; 2 Rob. Pr. (New) 136; 2 Dan. Neg. Inst. §§ 1757, 1754; 1 Dan. Neg. Inst. §§ 709, 713c, 714; 1 Brandt Sur. and Guar. c. 7, §. 176; 2 Ran. ComT. Paper, § 838; Sto. Bills, § 215; Sto. Notes, § 487; Chit.
§ 362; 2 Add. Cents. (8th Ed.) 217; Id. 229, 230; 1 Dan. Neg. Inst. §§ 666, 688, 669, 671; 1 B. & A. 696; 1 Salk. 132; 33 Gratt. 29; 19 Gratt. 418; 3 East. 481; 12 Wheat. 313; 9 Pick. 547; 1 Gratt. 36; 11 Ohio 62; 1 Brandt Sur. and Guar. ch. 7, § 185, 260; 2 Dan. Neg. Inst, § 995(b), 902; 21 Kan. 555; 22 W. Va. 142; 17 W. Va. 779; 10W. Va. 470; 4 W. Va. 29; 6 Gratt. 633; 6 Call 5; 2 W. Va. 13; 7 Gratt, 189.
II. R. Howard and Brown, Jackson & Knight for defendant in error cited 6 Gratt. 130; 2 Gratt. 354; 24 Gratt. 325; 1 Wash. 72; Id. 257; 22 Gratt, 308; 2 Munf. 510; 3 Munf. 168; 4 Rand. 359; 3 Pet. 1; 4 Watt. 329; 9 Pa. 32; 31 Minn. 385; 122 111. 583; 78 la. 519; 12 Ark. 622; 83 Ala. 79; 52 Lid. 52; 56 Cal. 442; 12 Mo. App. 531; 1 Hill (N. Y.) 102; 28 N. II. 235; 5 Johns. (N. Y.) 84; 2 Aik. (Vt.)413; 8 Tex. 376; Code, c. 134, s. 3; 4 Min. Inst. 814; Bar. Pr. 107; 24 Gratt. 138; Code, c. 131, s. 8; 34 VV. Va. 252; 10 W. Va. 116; 12 W. Va. 525; Id. 695; 7 Gratt. 189; 6 Gratt. 633; 8 Leigh 43; 11 Gratt, 822; 5 Rich (S. C.) 305; 52 Rich 17; 1 Par. Cont. 243; Sto. Prom. Notes, §§473, 475; Rand. Com. Paper §§ 66, 829; 1 Dan. Neg. Instr. § 713a, and note; 8 Leigh 43; 11 Gratt. 822; 18 Mo. 74; 45 Mo. 104; 48 Mo. 71; 51 Mo. 169; 24 Ark. 511; 30 Me. 310; 31 Me. 536; 2 Iloust. 79; 44 Me. 433; 35 Md. 262; 31 Mich. 150; 7 Minn. 446; 22 How. (U.S.) 341; 6 R.I. 505; 95 U. S. 95; 37 Md. 352; 3 Col. 136; 26Wis. 181.
E. S. Doolittle of counsel for plaintiff in error cited Greenl. Ev. §§ 51, 56, 58, 63; 3 II. & M. 219; 3 Leigh 250; 7 Cr. 208; 3 Or. 229; 7 Leigh 660; 6 Leigh 318; 4 Min. Inst. 578; 24 Gratt. 146; 17 W. Va. 779; 4 W. Va. 40; 2 W. Va. 13; Dan. Neg. Inst, §§ 902, 1769, 1787, 1988; Id. §§ 713a, 713b, 713c/713d, 713e; 8 Leigh 43; 11 Gratt. 822; 6 Gratt. 633; 7 Gratt. 189; 18 Gratt. 200; 3 Mich. 193; 11 Mete. 563; 5 Mass. 358; 9 Mass. 314; 8 Pick. 423; Dan. Neg. Inst, §§ 622, 658, 662, 1007, 1012, 1576; 2 Rob. Pr. 136; 2 Cal. 485; 34 Cal. 673; 46 Me. 176; 53 Me. 154; 5 Ad. & EL 436; 34 Kan. 414; 8 Kan. 32; Brandt Sur. and Guar. § 176; L. Cas. 112; Bigl. Notes and Bills, 45; 1 Ames Notes and Bills, 271.
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 plaintiffs in error 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; Hex v. Newman, 1 Ld. Raym. 562; Yin. Abr. tit. "Misnomer," p. 6, pi. 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 can not 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 w7ell 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 Keen v. Meade, 3 Pet. 1, it was strongly intimated 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. Seymour, 4 Watts, 329; Thompson v. Lee, 21 111, 242; McKay v. Speak, 8 Tex. 876. In 0"'Brannon v. Saunders, 24 Graft. 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, 122 111. 583 (13 N E. Rep. 809); (Jhoen v. State, 52 Ind. 347; People v. Ferris, 56 Cal. 442. In Ming v. Gwatkin, 6 Rand (Ya.) 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 Gratt. 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. (Ya.) 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 wras upon a promisory note. If it had been based on a specialty, for this variance the proper course would have been to crave oyer 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 defendant's 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...
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