The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1911-04-08
BANK Wins.
BY OPINION OF SUPREME COURT
IN w. VA. LAND CASE.
Wheeling Institution Was the Plaintiff
In the Proceedings Just
Closed.

Special Dispa-cn TO the rnteliigencer
CHARLESTON, ". Va, April T.
BY a decision rendered by the Su-
preme Court OF Appeals in affirming
the Circuit Court OF Kanawha county,
T.. T. Crawford and Walter T. Ashby,
OF Charleston. are required TO pay a
note for sl5.411.OS. now held by the
Dollar Savings Bank OF Wheeling, but
which had been given to Howard Haz-
lett. as trustee.
The original note was for s35.O21.
issued April 16. 1904. TO Mr.. Hazlett,
and made payable at the National Ex-
change Bank OF Wheeling. The note
was later transferred to the Dollar
Savings Bank by the trustee. The diff
hculty arose when IL was discovered
that the tract OF land purchased by
Crawford and Ashby In Logan and
Boone counties, West Virginia. did
not contain the acreage II was sup
posed to contain and what the pur-
chasers understood Il did contain.
They purchased the tract TO contain
3O,01S acres at 81 per acre. II later
developed that the tract contained but
21.645. or, approximately, 2,472 acres
less than the amount II was supposed
10 contain. The purchasers then re-
fused TO pay 81 an acre for the diff
ference between the actual amount OF
acreage and the amount the tract was
supposed to contain. As half owners
OF the tract. they refused TO pay what
that share would be.
Suit Instituted.
The Dollar Savings Bank. which
held the note for the unpaid portion
at the time the purchasers decided to
make no further payments, brought
suit against Crawford and Ashby IN
he Circuit Court OF Kanawha county.
and secured a Judgment for the
amount This was rendered March 20.
1909. The defendants later secured a
writ OF error and supersedeas from
the Supreme Court OF Appeals. and in
Its opinion the court below is affirmed.
The opinion OF the court was writ
ten by President Williams, and the
syllabus OF the case is as follows:
"A recital OF the consideration IN a
note, otherwise negotiable In form.
does not render II non-negotiabie. The
rights OF bona fide assignee OF such
a note. In due course. are not affected
by the equities of the maker.
knowledge by an assignee. in due
course. OF a negotiable note that II was
given for the purchase price OF 1 spec
4NNANANF Va ANU dA n EDeEluH0
price per acre is not notice to him OF
failure OF title or shortage IN guam
tity.
The use OF the word trustee. fol.
lowing the name OF the payee IN ne
gotiable note. does not destroy its NO.
gotiability. II the trustee has the right
10 sell II and receive proceeds; its
only effect is 20 put the purchaser
upon notice concerning the trustees
title and authority In respect 70 tho
note. The fact that q note is assigned
without recourse casts no suspicion
upon the holders title.
Whenever failure OF consideration
Is a proper defense in an action OF
assumpsit upon-a negotiable note. IL
need not be specially pleaded. but may
be proven under the general issue.
The holder Of note has the right
70 apply a partial payment received
thereon. FIRST. 20 discharge OF the in
terest then due. and the balance. II
any, 10 the payment OF the PRINCIPAL
pro tanto. a memorandum made bv
him on the note al the time OF recoiv-
ing the partial payment. endorsement
on principal followed by the amount
received. does not estop him from, AZ
forwards applying enough OF the nav
ment TO discharge the interest then
sue"