The First Nat'l Bank Of Hinton v. Young S.

• Decision Date: 02 October 1928
• Docket Number: (No. 6288)
• Citation: 106 W.Va. 134
• Parties: The First National Bank of Hinton v. Wm. Young et als.
• Court: West Virginia Supreme Court

106 W.Va. 134

The First National Bank of Hinton

v.Wm. Young et als.

(No. 6288)

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1928.

Decided October 2, 1928.

1. Appeal and Error Motion to Set Aside Verdict is In-

sufficient to Direct Attention to Alleged Error in Admission or Rejection of Evidence; Alleged Errors in Admitting or Rejecting Evidence Are Deemed Waived Unless Made Grounds of Motion For New Trial or Subject of Special Bills of Exception.

Alleged errors in the admission or rejection of evidence are deemed to have been waived if not made grounds of the motion for a new trial, or the subject of special bills of exceptions showing the evidence and rulings of the court thereon. A motion to set aside the verdict of the jury because the same is contrary to the law and the evidence is not sufficient to direct the trial court's attention to the particular evidence introduced or refused which is claimed as error. (p. 135.)

(Appeal and Error, 3 C. J. § 8 81.)

2. Bills and Notes Evidence Held to Sustain Finding That

Payee Accepted Other Collateral in Exchange of Note Sued on, Precluding Recovery (Code, c. 98-A, § 122). A case in which the verdict is supported by the evidence, (p. 136.)

(Banks and Banking, 7 C. J. § 163; Bills and Notes, 8 C. J. § 1365.)

(Note: Parenthetical references by Editors, C. j. Cyc. Not part of syllabi.)

Lively, President, absent.

Error to Circuit Court, Cabell County.

Action by First National Bank of Hinton against Wm. O. Young and others. Judgment for defendants and plaintiff brings eror.

Affirmed.

A. D. Daly, for plaintiff in error.

E. L. Hog sett and David F. Sheets, for defendant in error.

Woods, Judge:

This is an action by notice of motion for judgment on a negotiable note in the amount of $1,830.00 against Wm. O. Young and Lenna T. Young, as makers, and John F. Grossenbach, as payee. It is alleged to be held by plaintiff bank as collateral for a $1,200.00 note, given by said Grossenbach and discounted by it. On October 1, 1923, Grossenbach sold the Youngs a piece of real estate and took as part payment a series of notes, including a $1,830.00 note. No deed passed, but a contract was executed covering same. The note was renewed for another 365 days on October 1, 1924. Shortly before the renewal the Youngs sold their contract to one Gus Yan Hoose and his sister, a Mrs. Forest, and these purchasers agreed to pay off the $1,830.00 note at the rate of $100.00 per month. The present action is brought on this renewal. At the time Grossenbach put up this renewal note as collateral, he owed plaintiff bank some $14,000.00. In order to obtain a loan of $800.00 cash, he gave the bank his note for $1,200.00 and placed the $1,830.00 note up as collateral. Later he sought to exchange another series of negotiable notes, bearing the signature of one Overton, as maker, for the note now sued on. Plaintiff complains of the action of the circuit court of Cabell county in entering judgment on the jury verdict in favor of Wm. O. Young and Lenna T. Young.

The jury were instructed, at the instance of the plaintiff, that they should find for the plaintiff on the note sued on, unless the bank accepted other collateral, or agreed to accept other collateral, in lieu thereof. The one instruction given for the defendant incorporated a like proposition. Plaintiff now insists that it was error to permit the introduction of parol evidence to prove the alleged exchange of the collateral sued on here; that such a transaction amounted, in effect, to a "renunciation" of the note in so far as the plaintiff was concerned; and that, therefore the only way the Youngs were entitled to show said exchange was by presenting an unconditional release in writing, as required by section 122 of the Uniform Negotiable Instruments Act (Chapter 98-A, Code). But are all releases required to be in writing? Brannan's Negotiable Instruments (4th ed.) in discussing section 119 of said act, states: '' The maker of a note may be discharged by an oral agreement, under which a note was taken in settlement thereof at maturity, even though the old note was retained by the payee. An issue of fact is presented as to the purpose of this retention. Section 119, subd. 4, is broad enough to permit a discharge by novation without writing, and is not limited by section 122." In a case in many respects similar to ours, the Supreme Court of Oklahoma held: "This section (referring to section 122) has no application when the holder of a note accepts other instruments in accord and satisfaction thereof." Section 122 was undoubtedly intended to protect the innocent holder of a negotiable instrument from the necessity of meeting a defense of payment to or discharge by the original payee while the instrument was in his hands. However, inasmuch as the plaintiff's several objections to the introduction of evidence were not brought to the attention of the tral court on its motion to set aside the verdict and award it a new trial, or carried into proper bills of exceptions, the same must be treated as waived. Dransfield v. Boone-Armstrong Motor Co., 102 W. Va. 370; ...