Rucker v. Carpenter

CHIPMAN, P. J.

Plaintiff alleges in his complaint that, on May 20, 1913, at Charlestown, West Virginia, defendant executed and delivered to J. R. Pentuff his promissory note in words and figures following:

“$600.00. Charlestown, W. Va., May 20th, 1913.

“Six months after date, I promise to pay to the order of J. R. Pentuff, Six Hundred Dollars for value received, negotiable and payable at the Farmers and Merchants Deposit Co., Charlestown, W. Va.

“Samuel Carpenter, “Post office, Gazelle, Cal.”

That, prior to the commencement of this action, for a valuable consideration, said J. R. Pentuff sold, assigned, and transferred said promissory note to plaintiff, and plaintiff ever since has been, and now is, the owner and holder thereof; that at maturity, to wit, on November 20, 1913, said note was presented at said Farmers and Merchants’ Deposit Company, at

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Charlestown, West Virginia, to defendant for payment but payment was not made; that due notice thereof was given to said Pentuff; that defendant has not paid said note or any part thereof to said Pentuff or to plaintiff, and the whole thereof is due, owing, and unpaid, together with interest at seven per cent per annum from said May 20, 1913, amounting to $58.80. The complaint is verified.

A general demurrer to the complaint was overruled and defendant answered: Denied the alleged sale and transfer of said note and plaintiff’s alleged ownership thereof, but did not deny its execution and delivery; denied, on information and belief, that said note was presented for payment or that due notice thereof was given to said Pentuff as alleged in the complaint; denied that “said note was ever presented to him in person at any time or place.” For further answer, alleged that said note was given by defendant to.said Pentuff as security for the payment of three hundred dollars and no more; that three hundred dollars was all the money or thing of value received by defendant for said note.

A jury was waived and the court tried the cause and made the following findings: That defendant executed and delivered the note as alleged in the complaint, setting out the note in the findings; that, prior to the commencement of the action, said Pentuff sold and transferred said note to plaintiff, who ever since has been, and now is, the owner and holder thereof, and that at its maturity as alleged in the complaint the note was presented for payment as alleged and was not paid, and that due notice thereof was given said Pentuff and that neither said Pentuff nor defendant has paid the same nor any part, but the whole thereof is due and unpaid, together with interest at six per cent per annum from May 20, 1913. Thereupon judgment was duly entered for the sum of $670.40 and costs, amounting to $14.25.