Marshall County Bank v. Citizens Mut. Trust Co..

Decision Date27 March 1934
Docket Number(No. 7671)
Citation114 W.Va. 791
CourtWest Virginia Supreme Court
PartiesMarshall County Bank v. Citizens Mutual TrustCompany et al.

1. Bills and Notes

The production of a negotiable Instrument and proof of its genuineness, where such proof is necessary, establish a prima facie case for the plaintiff. The burden that the holder did not acquire it in good faith, for value, and without notice, is on the defendant.

2. Pleading

"Facts not necessary to maintain the action or defense need not be alleged, and if alleged will be treated as surplusage and need not be proven." Lohr v. Wolfe, 71 W. Va. 627, 77 S. E. 71.

Error to Circuit Court, Marshall County.

Action by the Marshall County Bank against the Citizens Mutual Trust Company and others. To review a judgment in favor of the plaintiff, the defendants bring error.


Kenna, Judge, dissenting.

J. M. Ritz, Tom B. Foulk and Caldwell, Kline & Mead, for plaintiffs in error.

Martin Brown, for defendant in error.

Maxwell, Judge:

This is a writ of error to a judgment of the circuit court of Marshall County on directed verdict for $13,333.98 in favor of the plaintiff and against the defendants.

The proceeding was upon notice of motion for judgment on a collateral, negotiable note of $12,000.00 dated at Wheeling, September 21, 1929, executed by G. W. Hannan and W. H. Koch, payable to the order of themselves, on demand, with interest, and indorsed by them. The plaintiff's evidence consisted of the note with the supplementary testimony of its assistant cashier as to the bank's possession of the note and the amount due thereon, and that value had been paid therefor by the bank. The only evidence offered on behalf of both defendants (not admitted by the court) was that of a Wheeling broker with reference to the market value, on specified dates, of the stock which had been placed with the note by the makers as collateral security. Certain offers of evidence on behalf of defendant Koch are hereinafter discussed.

'' The mere possession of a negotiable instrument, produced in evidence by the indorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstances impeaching its validity; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary), prima facie establishes his case; and he may there rest it; the burden of proving that a holder did not acquire it bona fide, for value, and without notice, is on the defendant." 2 Daniel on Negotiable Instruments (7th Ed.), section 945. Consult: 8 Corpus Juris, p. 473; Idem, p. 980; West Virginia Code 1931, 46-4-2, 7 and 9; N. I. L., sections 52, 57 and 59; Bank v. Simmons, 43 W. Va. 79, 27 S. B. 299; Savings Bank v. Haddix, 97 W. Va. 536, 125 S. E. 362.

The execution and indorsement of the note by Hannan and Koch is not questioned. The presumptions of law arising from the plaintiff's possession of the note are in nowise overcome. Its prima facie right is not overthrown by anything appearing in the record. The offer of defendant Koch to prove that he did not receive any of the proceeds of the note, that he was a mere accommodation m^ker, and that this fact was known to the plaintiff, was inconsequential. "The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorses." Code 1931, 46-5-1; N. I. L., section 60. "Under the statute (N. I. L., section 60), the maker of a promissory note is 'primarily liable' thereon, though he signs only for accommodation." Crawford's Negotiable Instruments Law (4th Ed.), page 119. Cf. 8 Corpus Juris, p. 276. "Accommodation paper is a loan of the maker's credit without restriction as to the manner of its use. * * * Until it is negotiated the maker can withdraw from and rescind his engagement upon it. But as soon as the instrument has passed into the hands of a holder for value the liability of an accommodation maker becomes fixed, and may be enforced although the holder knows him to be only an accommodation party." 3 Ruling Case Law, page 1137.

Defendant Koch also offered to prove at the trial that Hazlett & Burt were never his agents. This offer, refused by the court, was made apropos of an averment in the notice of motion for judgment that the note was delivered to the plaintiff by and through the defendants' agents, Hazlett & Burt. We are of opinion that the trial court properly refused the offer of defendant Koch on the agency matter. The primary and important elements are these: (1) the execution and indorsement of the note by Hannan and Koch; (2) the possession of the note by the plaintiff. The payees of the note having indorsed it, subsequent indorsements were not essential to its negotiation. On the merits basic, contractual, legal liability what difference whether Hazlett & Burt were or were not agents of Hannan and Koch? It is not material whether the note came into the possession of the bank directly from the indorsers, or from their agents, if any they had, or from intermediary assignees. The result is the same in either instance the makers are liable. Therefore, we are of opinion that the averment in the notice that the note had come to plaintiff through the agency of Hazlett & Burt is wholly immaterial to the issue.

Unnecessary matter contained in pleadings at law is deemed surplusage. 21 Ency. PI. & Pr., p. 230. It not only does not vitiate a pleading on demurrer, Martin v. Cochran, 94 W. Va. 432, 119 S. E. 174, but it may properly be disregarded at the trial. 21 Ency. PI. & Pr., p. 257. "Facts not necessary to maintain the action or defense need not be alleged, and if alleged will be treated as surplusage and need not be proven." Lohr v. Wolfe, 71 W. Va. 627, 77 S. E. 71, 72. It follows that the offer of Koch to prove that there was no such agency, not being material to the issue, was properly refused.

The old rule that in an action on a legal instrument there may not be joined as defendants a surviving maker and the personal representative of a deceased maker because as to the former the judgment would be de bonis propriis and as to the latter de bonis testatoris has been changed by statute, Code 1931, 55-8-8.

The judgment is affirmed.


Hatcher, Judge, concurring:

The scant averment of material facts in the notice of motion for judgment herein disturbed me initially. It is a cardinal rule of pleading in cases on bills and notes that the declaration or other pleading must'' allege facts showing plaintiff's title or right to sue.'' 8 C. J. 886, Accord: 14 Ency. PI. & Pr. 503; 3 R. C. L. 1336; Bank v. Hysell, 22 W. Va. 142; Young v. Bray, 54 Mont. 415, 170 P. 1044; Oulvey v. Converse, 326 I11. 226, 157 N. E. 245; Marvick v. Knight, 51 S. D. 151, 212 N. W. 866. There are a number of recitals in the notice relating to the obligation and to the duty of the makers of the note and to the legal effect of the instrument. But there is no specific allegation that the bank is the owner or the holder of the note. The sole allegation of fact relating to the bank's title to the note is that its makers "delivered" it (through their agents, etc.) to the hank. However, in Bank v. Howard, 71 W. Va. 57, 58-9, 76 S. E. 122, this Court held that an averment that a note was delivered to the plaintiff was equivalent to an averment that the plaintiff owned the note.

The notice does not allege directly that the note is unpaid. As early as 1878, Judge Green stated it to be " settled beyond controversy" in the Virginias that an allegation of non-payment was requisite. See his opinion in Douglas v. Land Co., 12 W. Va. 502, 510-511. Accord: Smoot v. McGraw, 48 W. Va. 144, 35 S. E. 914; Danser v. Mallonee, 77 W. Va. 26, 29, 86 S. E. 895. The notice does allege severally that each maker of the note is "indebted" to the plaintiff for the principal and interest of the note. Pacts relied on in aommon law pleadings must be stated directly and not left to argument and inference. See Timmons v. Trust Co., 173 S. E. 79 decided at the present term of this Court. But the notice herein being a pleading under the Code and not the common law, may be viewed with indulgence. Hall v. Railroad Co., 103 W. Va. 287, 289, 137 S. E. 226. If the note were paid, the makers could not be indebted on the note. Consequently, an indulgent view permits us to hold that the averment of indebtedness is equivalent to an averment that the note is unpaid. Deutsh v. Korsmeier, 59 Ind. 373, 374; Howard v. Richards, (Nev.) 90 Am. Dec 520: 14 Ency. PI. & Pr. 544; 4 Stand. Ency. of Pro. 253-4.

It would seem, therefore, that the averment is sufficient to permit a recovery.

Litz, Judge, concurring:

The sufficiency of the notice has not been questioned by demurrer or otherwise. The sole contention of defendants is that plaintiff was not entitled to recover without proving the alleged agency of Hazlett & Burt, and that they were authorized as agents of the makers to negotiate the note and receive the proceeds. This argument is wholly untenable. As stated in the opinion, plaintiff, by producing the note, established prima facie right to recover, in the absence of a plea of non est factum, or its equivalent, putting in issue the validity of the instrument. Merchants Bank & Trust Company v. Peoples Bank of Keyser, 99 W. Va. 544, 130 S. E. 142. Defendants have fallen into error by failing to distinguish between an action on a negotiable instrument and one on simple contract with an alleged agent. In the latter case, the foundation of the action depends upon proof of the agency. Couriers v. Gaskins, (Fla.) 90 So. 379, cited in the note of dissent by Judge Kenna, is...

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