1. Bills and Notes—Action—Declaration. In a declaration upon a promissory note seeking to hold irregular indorsers, whose names were found on the back of the note upon its delivery to the payee, as original promisors, a failure to allege a promise to pay renders the declaration bad on demurrer.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 1455.]
2. Same—Irregular Indorsers. The fact that the maker and irregular indorsers on such paper are sued thereon jointly in an action of debt is sufficient to show that the plaintiff has elected to hold such indorsers as original promisors.
(Syllabus by the Court.)
Error to Circuit Court, Raleigh County.
Action by George O. Quesenberry against I. T. Wood and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.
McWHORTER, J. George O. Quesenberry brought his action of debt in the circuit court of Raleigh county against I. T. Wood, J. D. Campbell, and J. A. Walker, M. D., and filed his declaration as follows: "Geo. O. Quesenberry complains of I. T. Wood, J. D. Campbell, and J. A. Walker, M. D., who have been duly summoned, of a plea that they render to the said plaintiff the sum of $481 which they owe to the said plaintiff, and from him unjustly detain. And thereupon the said plaintiff says that heretofore, to wit, on the 1st day of June, 1896, at the county aforesaid, the said I. T. Wood by his certain writing, the date whereof is the day and year last aforesaid, promised to pay to the order of M. D. Walker, 90 days after date, the sum of $150 for value received. The said note at the time and place of the making of the same and the delivery to the said M. D. Walker was indorsed on the back thereof as follows: 'J. D. Campbell. J. A. Walker, M. D.' And afterwards was further indorsed: 'I assign the within note to Geo. O. Quesenberry without recourse. [Signed] M. D. Walker.' And on the back thereof is also indorsed the following credits: 'Nov. 6, 1896, credit by cash $34.00. Dec. 7, by cash $25.00. Dec. 29, 1897, credit by cash $50.00.' And the said plaintiff further says that heretofore, to wit, on the 1st day of June, 1896, at the county aforesaid, the said I. T. Wood, by his other two certain writings, the date of each whereof is the day and year last aforesaid, promised to pay to the order of M. D. Walker four and five months, respectively, after date
thereof, the further sum of $300, to wit, $150 in each note, for value received, and at the time of the making and executing and delivering of the said notes by the said I. T. Wood to M. D. Walker the same were indorsed on the back thereof 'J. D. Campbell' and 'J. A. Walker, M. D., ' and that afterwards each of the said notes were further indorsed as follows: 'I assign the within note to Geo. O. Quesenberry without recourse. [Signed] M. D. Walker.' And the said plaintiff further says that heretofore, to wit, on the 1st day of June, 1896, at the county aforesaid, the said I. T. Wood, by his certain other writing, the date whereof is the day and year last aforesaid, promised to pay to the order of M. D. Walker, six months after date thereof, the further sum of $140 for value received, and that at the time the said note was delivered by the said I. T. Wood to M. D. Walker that the same was indorsed on the back thereof, 'J. D. Campbell' and 'J. A. Walker, M. D.'; and that since the time of the delivery of the same to the said M. D. Walker it has been further indorsed as follows: 'I assign the within note to Geo. O. Quesenberry without recourse. [Signed] M. D. Walker.' Which said last-mentioned note, together with the three others hereinabove described, after deducting the payments made on the first-mentioned note as hereinabove set forth, amounts to the said sum of $481 first above demanded, and each and all of the said four notes are now held and owned by the said Geo. O. Quesenberry, the plaintiff herein, as the assignee of M. D. Walker. Nevertheless the said I. T. Wood, J. D. Campbell, and J. A. Walker, M. D., although often requested so to do, have not as yet paid the said sum of $481 first above demanded, or any part thereof, to the said plaintiff, or to the said M. D. Walker, his assignor, or to either of them, or to their order, but hath hitherto wholly neglected and refused, and still neglects and refuses, so to do, to the damage of the said plaintiff $500. And therefore he sues." The declaration was filed at November rules, 1906, accompanied by the affidavit of the plaintiff Quesenberry under section 46 of chapter 125 of the Code of 1899 [Code 1906, § 3866], and common order entered, and at December rules common order was confirmed. On the 11th day of April, 1907, the defendants J. A. Walker and J. D. Campbell demurred to plaintiff's declaration, which being considered was overruled. The defendant J. A. Walker tendered his affidavit as required to set aside the office judgment, which was filed, and said defendant entered his plea of...
