Roanoke Grocery & Milling Co v. Watkins

CourtSupreme Court of West Virginia
Writing for the CourtHOLT
Citation41 Va. 787,24 S.E. 612
PartiesROANOKE GROCERY & MILLING CO. v. WATKINS et al.
Decision Date28 March 1896

24 S.E. 612
41 Va. 787

ROANOKE GROCERY & MILLING CO.
v.
WATKINS et al.

Supreme Court of Appeals of West Virginia.

March 28, 1896.


Negotiable Instruments—Indorsement before Delivery—Effect.

1. Where a negotiable promissory note, made payable to a particular person or order, is first indorsed by a third person, and then delivered to the payee, 6uch third person is held to be an original promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time; and this may be shown by parol proof.

2. If it be shown that the understanding between such third person and the payee at the time of the transaction was that such third person should be bound only collaterally, in such case the payee will not have the right to hold him bound as an original promisor.

3. Defendant Jones was sued only as a joint promisor, and pleaded the general issue nil debet The court was asked on his behalf to give the following instruction: "Defendant's Instruction No. 6. The court instructs the jury that if they believe from the evidence in this case that H. C. Jones indorsed his name on the back of the note sued on in this case as indorser, and not as joint maker thereof, and that at the time the said note was delivered to the plaintiff it knew the said Jones indorsed the said note as an indorser thereon, and not as a joint promisor, and that the said plaintiff had said note regularly protested, and had notice sent to the said Jones, as indorser, of such protest, then the jury may consider said facts along with the other evidence in the case, and if therefrom they believe from the evidence that the said Jones was an indorser on the note sued on, and not a joint maker or promisor, they should find for the defendant, " —which, being objected to by plaintiff, was refused by the court. Held, this was error to defendant's prejudice, as the evidence tended to prove the facts upon which it was based.

(Syllabus by the Court)

Error to circuit court Mercer county.

Debt by Roanoke Grocery & Milling Company against W. T. Watkins and J. P. Surface, partners as Watkins & Surface, and H. C. Jones, on a note. There was a judgment for plaintiff, and defendant Jones brings error. Reversed.

Johnston & Hale, for plaintiff in error.

HOLT, P. Upon a writ of error to a judgment rendered by the circuit court of Mercer county on the 21st of May, 1895, for $842.78 in favor of the Roanoke, etc., Company against defendant H. C. Jones, who alone appeals. The suit was an action of debt, containing two counts, upon the following negotiable note, irregularly indorsed by W. P. Phillips (dead at the time of the suit) and defendant H. C. Jones, which note reads as follows: "$745.83. P. O. Bluefield, Dec. 28, 1892. Seventy-eight days after date we promise to pay to the order of Roanoke Grocery and Milling Company seven hundred and forty-five 83/100 dollars. Negotiable, and payable at First National Bank of Bluefield, W. Va. Homestead and all other exemptions waived by the maker and each indorser. Value received. Watkins & Surface. No. 2, 787. 16-19 March. Due 16-19 March." Indorsement on back: "W. P. Phillips. H. C. Jones." "Protested for nonpayment, March 18, '93. Geo. C. Pollock, N. P." The process was duly served on the three defendants and returned, and the conditional judgment and judgment by default were duly entered at rules, and the case properly entered on the court docket. On the 15th day of February, 1895, defendant Jones appeared by his attor ney, and demurred generally to plaintiff's declaration, and to each count in which the plaintiff joined, and the court having overruled the same, and defendants Watkins & Surface continuing in the default, the court rendered judgment against them. Defendant Jones entered the plea of nil debet which in debt on simple contract is still, with us, the general issue, putting the plaintiff to the proof of every ma-ferial averment, where some statute does not otherwise provide. See Code, c. 125, §§ 40, 41; 5 Rob. Prac. 246-248. And all the facts alleged must concur to prove the defendant indebted to the plaintiff. As to the demurrer, the plaintiff gave notice to the defendant that it elected to treat the defendant and all the other parties to the note sued on as joint promisors, and not to treat defendant Jones as indorser or guarantor, and that it relied upon the second count alone; therefore, at the instance of the plaintiff, the first count is to be disregarded. See Code, c. 131, § 13.

In the second count it is averred that the said W. P. Phillips is "since deceased, " and, reading that for the present in aid of the second count, it shows why such joint promisor is not also sued. See 1 Bart. Law Prac. 144. That objection being removed, the count is good against the three survivors as joint promisors. I think it is to be regretted that the doctrine has not been laid down in this state that such irregular indorser who puts his name on the back of a negotiable note before it is delivered to the payee or indorsed by him should be presumed to be a first indorser to the extent of being entitled to notice of nonpayment, etc. See 1 Daniel, Nog. Inst. § 714; Pool v. Anderson, 116 Ind. 88, 18 N. E. 445. It is desirable that such paper should carry its history on its face, and should be prima facie presumed to be what it appears to be, viz. an indorsement so far as the rights of a regular indorser are concerned. In this state I understand the doctrine to be that, when a negotiable promissory note, payable to a particular person or order, is first indorsed by a third person, and then delivered to the payee, such irregular indorser is prima facie an original promisor or guarantor, as the payee may elect. But the true nature of the transaction and the understanding of the parties at the time may be shown by parol proof, and such proof may de-

[24 S.E. 613]

stroy the right of election of the payee, and such irregular indorser may be held liable only as an original promisor or as a guarantor or as an indorser, according to the nature of the transaction and the understanding of the parties to it. If it is shown that such third person signed his name on the back of the note at the time it was made as surety for the maker, and for his accommodation, to give him credit with the payee, such proof does not alter the right of the payee to hold him bound as an original promisor or as guarantor or as an indorser, as he may elect. If it be shown that the understanding between...

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14 practice notes
  • Young v. Sehon
    • United States
    • Supreme Court of West Virginia
    • April 11, 1903
    ...Linn, 40 W. Va. 122, 20 S. E. 878; Goff v. Miller, 41 W. Va 683, 24 S. E. 643, 56 Am. St. Rep. 889; Roanoke Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; and Miller v. Clendenin, 42 W. Va. 416, 26 S. E. 512. The report of the case in Bank v. Hysell, 22 W Va. 142, indicates that no parol evid......
  • Kidd v. Becklet
    • United States
    • Supreme Court of West Virginia
    • March 17, 1908
    ...by him before delivery. Burton v. Hansford, supra; Long v. Campbell, 37 W. Va. 665, 17 S. E. 197; Roanoke Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; Miller v. Clendennin, 42 W. Va. 416, 26 S. E. 512; Golding v. Pottery Co., 60 W. Va. 317, 55 S. E. 396; Peters v. Coal Co., 61 W. Va. 392, 5......
  • Young v. West Va. C.
    • United States
    • West Virginia Supreme Court
    • April 4, 1896
    ...question raised by its motion to exclude the evidence. In the case recently decided by this Court of Milling Co. v. Watkins, 41 W Va. 787 (24 S. E. 612) Holt, President, in delivering the opinion of the Court, says: "Each party, at certain stages of the trial, moved the court to exclud......
  • Ercole v. Daniel, (No. 6038.)
    • United States
    • Supreme Court of West Virginia
    • February 7, 1928
    ...W. Va. 437, 63 S. E. 206; Young v. Railroad Co., 42 W. Va. 112, 24 S. E. 615; Roanoke Grocery & Milling Co. v. Watkins, 41 W. Va. 7S7, 24 S. E. 612; Poling v. Railroad Co., 38 W. Va. 646. 18 S. E. 782, 24 L. R. A. 215. Defendant complains of the giving of plaintiff's instruction No. 1, ......
  • Request a trial to view additional results
14 cases
  • Young v. Sehon
    • United States
    • Supreme Court of West Virginia
    • April 11, 1903
    ...Linn, 40 W. Va. 122, 20 S. E. 878; Goff v. Miller, 41 W. Va 683, 24 S. E. 643, 56 Am. St. Rep. 889; Roanoke Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; and Miller v. Clendenin, 42 W. Va. 416, 26 S. E. 512. The report of the case in Bank v. Hysell, 22 W Va. 142, indicates that no parol evid......
  • Young v. West Va. C.
    • United States
    • Supreme Court of West Virginia
    • April 4, 1896
    ...question raised by its motion to exclude the evidence. In the case recently decided by this Court of Milling Co. v. Watkins, 41 W Va. 787 (24 S. E. 612) Holt, President, in delivering the opinion of the Court, says: "Each party, at certain stages of the trial, moved the court to exclude the......
  • Kidd v. Becklet
    • United States
    • Supreme Court of West Virginia
    • March 17, 1908
    ...by him before delivery. Burton v. Hansford, supra; Long v. Campbell, 37 W. Va. 665, 17 S. E. 197; Roanoke Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; Miller v. Clendennin, 42 W. Va. 416, 26 S. E. 512; Golding v. Pottery Co., 60 W. Va. 317, 55 S. E. 396; Peters v. Coal Co., 61 W. Va. 392, 5......
  • Ercole v. Daniel, (No. 6038.)
    • United States
    • Supreme Court of West Virginia
    • February 7, 1928
    ...64 W. Va. 437, 63 S. E. 206; Young v. Railroad Co., 42 W. Va. 112, 24 S. E. 615; Roanoke Grocery & Milling Co. v. Watkins, 41 W. Va. 7S7, 24 S. E. 612; Poling v. Railroad Co., 38 W. Va. 646. 18 S. E. 782, 24 L. R. A. 215. Defendant complains of the giving of plaintiff's instruction No. 1, w......
  • Request a trial to view additional results

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