Walker v. Hall
Walker v. Hall
Opinion of the Court
delivered the opinion of the court.
The suit was brought by Hall as indorsee against Walker, the maker. The note or due-bill sued on was payable to W. P. and W. H. West. For value, it was indorsed by W. P. West, to Hall. W. H. West did not indorse, but she was present when the indorsement was made by W. P. West, and it was supposed that it was not necessary for her to sign as indorser.
The legal title to the instrument, after the indorsement of W. P. West, was in Hall and W- H. West. It is not disputed that Hall was the owner of the instrument, for value, at the time the suit was commenced. So that Hall had a right of action at the time the suit was brought, and the case is distinguishable from those which hold that a suit cannot be maintained when the cause of action does not exist at the time it is brought, but arises afterward.
Hall might have sued in his own name and in the name of W. H. West for his use. Instead of pursuing this course, he sued in his own name, and in doing so, there was simply the non-joinder of a proper and necessary party. Section 1511 of the code pro
As the trial, under the circumstances, may have proceeded notwithstanding the non-joinder, and as the court might have allowed Hall to amend by adding the name of W. H. West as one of the plaintiffs for his use, Walker was not harmed by W. H. West being allowed to indorse the paper at the trial.
The errors assigned in regard to the account against W. P. West, filed by Walker as a set-off, need not be considered further than to say, that if error was committed with reference to it, it was error without injury. If the action had been brought by the payees W. P. and W. H. West against Walker, the indebtedness of one of them to him, could not have been pleaded as a set-off by Walker, against the joint demand, because there would have, been want of mutuality. Bullard v. Dorsey, 7 S. & M. 9 ; Moody v. Willis, 41 Miss. 347.
And as Walker could not have used a claim in his favor against one of the payees, as a set-off, if the suit had been brought by them, he could not use such claim for such purpose against their assignee.
Affirmed.
Reference
- Full Case Name
- John W. Walker v. J. G. Hall
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Action. Right of, when suit brought. Where a plaintiff, who is the real owner of a note, which is, however, indorsed by only one of two payees therein, sues upon it in his own name alone, the suit will not be defeated upon the ground that a cause of action did not exist when the suit was brought. In such case there is a right of action in plaintiff, and merely a non-joinder of a necessary party. 2. Non-joinder. Code 1880, ? 1511. Amendment. The defendant can only object in such a case for non-joinder, and this, under jj1511, code 1880, must be by written notice, filed with his plea, stating the name of the party omitted. Thereupon the plaintiff should be allowed to amend by joining the proper party. 3.. Amendment. Practice. As the court, in a suit thus brought, if notice of non-joinder had been given, might have allowed plaintiff to amend, by joining as plaintiff for his use the payee who had not indorsed the note, the defendant is not harmed, and cannot complain, if the court allows such payee to indorse the note . at the trial. 4. Set-oee. Mutuality. In a suit by two joint payees in a promissory note against the maker, the latter cannot plead as a set-off'a debt due him by one of the plaintiffs. In such a case there is a want 'of mutuality. 5. Plaintiff as Assignee. Mutuality of set-off. And as the maker could not plead, by way of set-off, a claim in his favor against one of two joint payees, he cannot use the claim for such purpose against their assignee.