Ritchie County Bank v. Petitioner
| Decision Date | 29 October 1907 |
| Citation | 62 W.Va. 457 |
| Parties | Ritchie County Bank v. Bee et als. |
| Court | West Virginia Supreme Court |
In an action upon a renewal note, unless accepted in absolute payment of the original by express agreement, the plaintiff may of right, upon the filing of a plea of non est factum by the defendant, accept such plea and so amend the pleadings as to set up the original note. (p. 461.-)
If in such case the plaintiff does not elect to accept the plea and so amend his pleading but proceeds to trial, he will be regarded as having-refused to amend when opportunity was offered: and this Court will not reverse the judgment below upon the issue joined on such plea, and remand the case for a new trial on amended pleadings to be filed. (p. 462.)
The verdict and judgment in such case will not preclude the plaintiff from recovery in any subsequent action by him on the note of which the one first sued on was given in renewal, (p. 462.)
Mere silence by one whose name is purported to be signed to a note but who has in fact never signed the same, after receiving notice of protest thereof, will not amount to ratification. (p. 462.)
In order to entitle the plaintiff to recover on a note, upon an issue of non est factum, it is incumbent, upon him to prove either that the defendant signed the note, or that his name was signed thereto by some person duly authorized, or that, having knowledge of the fact that his name was so signed and of all material facts, he subsequently ratified the same. (p. 462.)
Error to Circuit Court, Ritchie County.
Action by the Ritchie County Bank against Rebecca J. Bee and another. Judgment for the named defendant, and plaintiff brings error.
Reversed.
Freer & Robinson, for plaintiff in error.
8. A. Powell, Duty & Filler, and Homer Adams, for defendant in error.
Miller, President:
The justice in whose court this suit originated summoned E. L. Bee and R. J. Bee, his wife, to answer the complaint of the Ritchie County Bank " in a civil action for the recovery of money due on note and protest fees, in which the plaintiff will demand judgment for $205.44, with interest and costs according to law." Besides the general denial of the plaintiff's action, R. J. Bee filed a verified plea "that she did not sign said note for $204, sued on by the said plaintiff in this action; that the name R. J. Bee signed to said note and purporting to be her signature is not her handwriting; and that the said name R. J. Bee signed to said note and purporting to be her signature was not written by her, nor by any person by her duly authorized or directed, nor with her knowledge or consent." There were no other pleadings. The justice gave judgment in favor of the plaintiff for $240.16, with interest and costs. R. J. Bee alone appealed to, and the case wras tried denovo in, the circuit court without additional pleadings, oral or written, so far as the record shows. The verdict was for the defendant; and from the judgment thereon the bank brings error. Neither the summons nor the plea of defendant described the note. On the trial in the circuit court the following was the only note offered in evidence:
Counsel and witnesses on both sides referred to this note as the one sued on, but it was clearly shown that it had been accepted as a second renewal of a note of September 1, 1901, for the same amount, without notice of any defect in the execution thereof. R. J. Bee admitted execution of the original note. The bank claims, and it is not controverted, that it purchased the original note before maturity without notice of any equities as between the original parties. It does not clearly appear what disposition was made by the bank of the original note on its accepting the first or the last renewal. The bank contends it was entitled to verdict and judgment, supported either by the original or the renewal note. This presents a preliminary question involving the state of the pleadings and also the judgment refusing a new trial, which is the first error assigned.
Chapter 50, Code, is a code of practice prescribed for proceedings before justices. While no particular forms are required, section 50 prescribes what the pleadings shall be, and stricter adherence in practice to that section would save courts and litigants a great amount of trouble and expense. The pleadings prescribed are simple and easily understood, consisting of a complaint by the plaintiff and the answer of the defendant. They may be oral or in writing. If oral, the substance of them is required to be entered by the justice in his docket; if in writing, they are to be filed by him and reference made to them in his docket. The statute requires the complaint to state in a plain and direct manner the facts constituting the cause of action, and, if more than one cause of action be stated therein, that each shall be separately stated and numbered. The answer of the defendant may contain a denial of the complaint or some part thereof, or facts constituting a defense or counter claim. Each party may except to a pleading of his adversary when not sufficiently explicit to be understood, or if it contains no cause of action or defense. If the exception is well founded, the justice shall order the pleadings to be amended. If the party refuses to amend, the defective pleading shall be disregarded. Paragraph 8 of the same section provides that "in an action or defense founded upon an account, note or other writing for the payment of money it shall be sufficient for the party to deliver the account, note or other writing to the jus- tice, and to state that there is due to him thereon from the adverse party a specific sum, which lie claims to recover or set-off in the action." Section 51 provides that "when judgment is rendered the justice shall endorse upon such instrument the title to the suit and the amount allowed in the judgment to the plaint iff' or defendant on account of the same, * * * and no suit or suits shall thereafter be instituted between the same parties, or those claiming under them, for the matter so adjudged and decided." The docket of the justice fails to show even that the action was founded upon a note, and does not show that any note was filed with the justice; nor does it appear in the record that any endorsement thereon of the title of the suit and the amount allowed in the judgment was made. With no certainty, therefore, can we treat the note as a pleading, it not being referred to in the docket or other paper filed. Paragraph 9 of section 50 says that "a variance between the proof on the trial and the allegations of a pleading shall be disregarded as immaterial, unless the justice shall be satisfied that the adverse party has been misled to his prejudice thereby." Paragraph 10 says that "the pleadings may be amended at any time before the trial, or during the trial, when by such amendment substantial justice will be promoted."
The liberality of construction heretofore given these provisions of the statute would seem to require that we treat the summons, the justice's docket and the note offered in evidence, and referred, to as the one sued upon, as constituting the complaint of the plaintiff; and, as the parties went to trial upon this state of pleading, we must consider the case as presented. In White v. Emblem, 48 W. Va. 819, it was held not reversible error that there was no plea or issue in an action before a justice, either in the justice's court or on appeal, where there was a full trial as upon plea and issue. See also O' Connor v. Dils, 43 W. Va. 54; Simpkins v. White, Id. 125; Weimer v. Rector, Id. 735; Meighen v. Williams, 50 W. Va. 65; Vandervort v. Fouse, 30 W. Va. 326.
Treating the pleadings as sufficient, can we reverse the judgment of the court denying a new trial? Though there was some evidence that the renewal note was signed and delivered to the payee by E. L. Bee in the presence of R. J. Bee, yet there was no evidence that she actually signed the paper or authorized it to be signed. There is evidence that she positively refused to sign the note, and never afterwards ratified the same; and she says that, subsequently and after the maturity of the note sued on, when in conversation with the bank officer, she supposed it was the original note to which reference was made. Upon this conflict of evidence, we can not say there was error in the judgment of the court refusing a new trial.
It is claimed that acceptance of a renewal note is not payment of the original without express agreement to that effect. The authorities so hold. See Dunlap v. Shanklin, 10 W. Va. 662; Feamster v. Withrow, 12 W. Va. 611; BantzY. Harnett, 12 W. Va. 772; Bank v. Good, 21 W, Va. 455; Hess v. Dille, 28 W. Va. 90; Bank v. Hanley, 48 W. Va. 690. And if fraud has been practiced the giving of the renewal note would not be treated as payment of the original, even in case of express agreement. Bank v.
Good, supra, and cases cited. As the defense in this case was that the defendant never executed the note sued on, as to her it could not be treated as in discharge of the original paper. Upon filing, her plea, we think the plaintiff was entitled to accept the plea and amend the pleadings, setting up the original note. The cause of action would have been the same. But the plaintiff did not elect to amend; and, although perhaps there was sufficient evidence to support the suit upon the original note, yet as to that paper no issue was tendered to the defendant, and she has not had her day in...
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