Stewart v. Tams
| Decision Date | 11 February 1930 |
| Docket Number | 6635. |
| Citation | 151 S.E. 849,108 W.Va. 539 |
| Parties | STEWART v. TAMS et al. |
| Court | West Virginia Supreme Court |
Submitted February 5, 1930.
Syllabus by the Court.
Special counts in a declaration in assumpsit, charging jointly a maker and an assignor of a nonnegotiable instrument, are bad on demurrer.
Syllabus 1 of Hunt v. Mounts, 101 W.Va. 205, 133 S.E. 323, and syllabus 2 of Urton v. Hunter, 2 W Va. 83, in so far as they may be construed as holding that a misjoinder of parties defendant in an action ex contractu must be made the subject of a plea in abatement are disapproved.
The common-law rule remains unchanged in this jurisdiction that if there is a misjoinder of parties defendant in an action ex contractu, appearing on the face of the declaration, any of the defendants may raise that question on demurrer.
Error to Circuit Court, Wyoming County.
Action by Ira P. Stewart against W. P. Tams and another. To review an adverse judgment, plaintiff brings error. Affirmed
J. Albert Toler, of Mullens, for plaintiff in error.
McGinnis & McGinnis, of Beckley, and Price, Smith & Spilman, of Charleston, for defendants in error.
Ira P. Stewart, who is assignee, instituted this action in the circuit court of Wyoming county jointly against W. P. Tams, maker, and F. M. Stewart, payee-assignor, of a nonnegotiable instrument. The declaration does not disclose the county of the residence of any of the parties, but it appears from the original writ that process for defendant Stewart was directed to and served by the sheriff of Wyoming county, and that process for defendant Tams was directed to and served by the sheriff of Raleigh county. Tams alone appeared an demurred to the declaration and each count thereof on the ground of misjoinder of parties defendant. The trial court sustained said demurrer to the two special counts, but overruled it as to the common counts. Leave to amend was granted, but the plaintiff declined to amend, and, with permission of the court, withdrew the common counts, whereupon judgment of nil capiat was entered. The plaintiff prosecutes this writ of error to the action of the trial court in sustaining the demurrer to the special counts.
It is argued on behalf of the plaintiff that "the assignee of a nonnegotiable instrument, which has been assigned to him by the payee therein with full recourse, may maintain a joint action against the maker and assignor thereof." Among the cases cited in support of this proposition are Burton v. Hansford, 10 W.Va. 470, 27 Am. Rep. 571, and Long v. Campbell, 37 W.Va. 665, 17 S.E. 197. Those cases and others of similar import are not authority for the proposition stated, but they are authority for the proposition that, where a person, not a payee, signs his name in blank on the back of a nonnegotiable instrument before delivery for the purpose of adding strength and credit to it, he may be held as maker or guarantor at the election of the holder, in the absence of a special agreement, of which the holder had notice. Young v. Sehon, 53 W.Va. 127, 44 S.E. 136, 62 L. R. A. 499, 97 Am. St. Rep. 970. The reason for this rule is that the credit of the person thus signing his name is relied on in the first instance when the instrument is employed to obtain money or other thing of value thereon, and, where he has thus pledged his credit at the outset, he should, of course, be held to full liability. But such is not the case here. The instrument in suit was not assigned by the payee to the plaintiff until nearly eight years after the last installment provided for by it had become due. The payee-assignor's liability is therefore in no sense original or primary. His undertaking is entirely different from that of the maker. The maker's undertaking is an express promise to pay the debt. The assignor's liability is implied by law. It is thus stated: "Where a party assigns a nonnegotiable instrument calling for the payment of money by writing his name across the back and delivering it, he warrants by implication, unless otherwise agreed, its validity and his right to assign, that it is a subsisting unpaid debt, and the solvency of the debtor." Merchants' National Bank of W.Va. v. Spates, 41 W.Va. 27, 23 S.E. 681, 56 Am. St. Rep. 828. Also Trustees of Broaddus Institute v. Siers, 68 W.Va. 125, 69 S.E. 468, Ann. Cas. 1912A, 920.
The measure of liability of the maker and assignor is different. As to the former it is the face of the note; as to the latter it is the amount received by him from his immediate assignee. Thomas v. Linn, 40 W.Va. 122, 20 S.E. 878. And not only do these fundamental distinctions exist, but there is another equally vital: While suit may be brought against the maker at any time after maturity and within the period of limitation, a right of action does not arise as against the assignor until legal recourse has been exhausted against the maker, or he has become insolvent, or from some other cause it is made to appear that a suit against him would be unavailing. Thomas v. Linn, supra; 3 Minor's Institutes (2d Ed.) p. 436. In the light of all of which it is clear that the defendants were not jointly liable on the instrument in suit, that their undertakings were separate and distinct, and that they were improperly joined as parties defendant. And these facts appear on the face of the declaration. There is not only a misjoinder of parties defendant but of causes of action. Two separate contracts are pleaded. Such situation renders a declaration bad on demurrer. "Special counts in a declaration in assumpsit charging a debtor and a guarantor of the debt jointly, are bad on demurrer." Shore v. Lawrence, 68 W.Va. 220, 69 S.E. 791.
But the plaintiff says, if there be a misjoinder, (a) the same should have been taken advantage of by plea in abatement; and (b) if the question of misjoinder may be raised by demurrer, such may be done only by defendant Stewart, the assignor, and not by Tams, the primary obligor.
In support of the position that the alleged misjoinder could be taken advantage of only by plea in abatement, reliance is placed on section 16, c. 125, Code; Wolfe v. Jordon, 93 W.Va. 42, 116 S.E. 132; Hunt v. Mounts, 101 W.Va. 205, 133 S.E. 323; and Urton v. Hunter, 2 W. Va. 83. The pertinent portion of the statute cited reads: "Where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed, unless it be taken by plea in abatement." This provision does not apply here, because the declaration in suit does not show on its face proper matter for the jurisdiction of the court. The declaration discloses that it is a joint action against two defendants who are not jointly liable. As already shown, the bases of their liability are wholly distinct, being two separate undertakings. A primary purpose of a plea in abatement is to introduce into the record some extrinsic matter which may prevent the plaintiff from prosecuting the action in its existing form. On that basis, therefore, a plea in abatement would discharge no useful function here, because the objectionable matter appears in the declaration itself.
It is true that in the case of Hunt v. Mounts syllabus 1 reads in part: "Such a defect as a nonjoinder or misjoinder of parties must be made the subject of a plea in abatement." In the opinion it is said: ...
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