Smoot v. Mcgraw
| Decision Date | 21 April 1900 |
| Citation | 48 W.Va. 144,35 S.E. 914 |
| Parties | SMOOT v. McGRAW. |
| Court | West Virginia Supreme Court |
ACTION ON NOTE—PLEADING.
1. In an action of debt or assumpsit upon a promissory note or bond it is indispensable to aver nonpayment, and that to every party connected with the note entitled to receive payment, whether payee, assignee, decedent, or representative, or survivors of decedents, and each one of parties jointly entitled to receive payment.
2. In a declaration upon a nonnegotiable note, an averment that a person "indorsed" it, instead of the word "assigned" it, is equivalent to the word "assigned" on demurrer.
(Syllabus by the Court.)
Error to circuit court, Taylor county; John Homer Holt, Judge.
Action by J. R. Smoot against John T. McGraw. Judgment for plaintiff. Defendant brings error. Affirmed.
W. R. D. Dent and John L. Hechmer, for plaintiff in error.
B. F. Bailey, for defendant in error.
BRANNON, J. J. R. Smoot brought assumpsit in the circuit court of Taylor county against John T. McGraw upon a promissory note made by McGraw to Hoffman Sommers, and transferred by Sommers to Francis M. Durbin, and by Durbin to Smoot. A jury trial was had, resulting in a verdict for Smoot, and judgment was rendered thereon, and McGraw sued out a writ of error. McGraw's counsel have no brief. The assignment of error is all we have to specify the grounds of complaint against the judgment. McGraw assigns as error the overruling of his demurrer to the declaration. It is claimed that the declaration does not aver that the assignment of the note by Durbin to Smoot was made after the assignment by Sommers to Durbin. I think it does. After stating the execution of the note by McGraw to Sommers, the declaration says: "And the said Hoffman Sommers, after the making of the said promissory note, before the payment of the sum of money therein specified, to wit, on the day and year aforesaid, indorsed the said note, by which said indorsement he, the said Hoffman Sommers, ordered and appointed the said sum of money to be paid to Francis M. Durbin, and then and there delivered the said promissory note, so indorsed as aforesaid, to the said Francis M. Durbin; and the said Francis M. Durbin, before the payment of the said sum of money therein specified, to wit, on the day and year aforesaid, indorsed the said promissory note, by which said indorsement he, the said Francis M. Durbin, ordered and appointed the said sum of money in the said promissory note specified to be paid to the said plaintiff, and then delivered the said promissory note so indorsed as aforesaid to the said plaintiff." This declaration states, in order of time and sequence, first, the execution of the note; next, its indorsement by Sommers to Durbin; next, its indorsement by Durbin to Smoot. The declaration first states a complete assignment from the payee to Durbin, and then states an assignment from Durbin to Smoot. How could Durbin assign to Smoot until after Sommers' assignment to him? Both assignments are stated, one after the other, in order.
The next point of complaint under the head of demurrer is that the declaration does not state that the defendant did not pay the note to the payee, or his immediate assignee, after the assignment to the plaintiff, no notice of any of the assignments having been given to the defendant Plaintiff's counsel seeks to meet this point by saying that a declaration need not aver nonpayment to Sommers or Durbin after Durbin's assignment to Smoot. I do not concur in this position, for I think that the declaration must contain a breach of obligation or duty—a wrong done—to give cause of action, which wrong or breach of duty, in the case of a promissory note, is the nonpayment of the debt; and, an averment of nonpayment being essential, if the note has passed through several hands, the declaration must aver that it was not paid to any of those who had authority to receive payment. Judge Green's opinion in Douglass v. Land Co., 12 W. Va. 502. If notice to McGraw of assignment had been averred as the forms prescribe (4 Rob. Prac. 192), it would only be necessary to aver nonpayment to assignor before such notice, as thereafter the assignor could not receive payment; but, that being omitted, the...
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