Smoot v. McGraw.

• Decision Date: 21 April 1900
• Citation: 48 W.Va. 144
• Court: West Virginia Supreme Court
• Parties: Smoot v. McGraw.

48 W.Va. 144

Smoot

v.McGraw.

Supreme Court of Appeals of West Virginia.

Decided April 21, 1900.

1. Action Debt or Assumpsit Pleading.

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, (pp. 146, 147).

2. Declaration Negotiable Note Averment.

in a declaration upon a non-negotiable note, an averment that a person "indorsed" it, instead of the word "assigned" it, is equivalent to the word "assigned" on demurrer. (p. 147).

Erro to Circuit Court, Taylor County.

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.

Bran non, Judge:

J. R. Smoot brought assumpsit in the circuit court of Taylor County against John T. McGraw upon a promissory note made by McGraw to 11 off man 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 assignee 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, endorsed the said note, by wb Lch said endorsement 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 endorsed as aforesaid to the said Frances 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, endorsed the said promissory note, by which said endorsement he, the said Francis M. Durbin, ordered and appointed the said sum of money in the said promissory note specified to be paid i < the said plaintiff, and then delivered the said promissory note so endorsed as aforesaid to the said plaintiff." This declaration states in order of time and sequence, first, the execution of the note; next, its endorsement by Sommers to Durbin; next, its endorsement 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 sate 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 Inning been given to the defendant. Plaintiff's counsel seeks to meet this point by saying that < declaration need not aver nonpayment to Sommers or Durbin after Durbin's assignment to Smoot. 1 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 non-payment of the debt; and an averment of non-payment 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. Centra! Land Co.. 12 YY. Va. 502. If notice to McGraw of assignment had been averred, as the forms prescribed (4 Rob. Prac. 192), it would only be necessary, to aver] non-payment to assignor before such notice, as thereafter the ass gnor could not receive payment; but that being omitted, the averment spoken of becomes necessary in this particular case. Therefore, it is necessary that the declaration show that this note was not paid to either Soinmers, or...