Berisford v. Lynch

West Virginia Supreme Court

Berisford v. Lynch

126 S.E. 492, 98 W. Va. 121, 1925 W. Va. LEXIS 18

CourtWest Virginia Supreme Court

DecidedFebruary 3, 1925

DocketC. C. 321.

StatusPublished

Cited by1 cases

This text of 126 S.E. 492 (Berisford v. Lynch) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berisford v. Lynch, 126 S.E. 492, 98 W. Va. 121, 1925 W. Va. LEXIS 18 (W. Va. 1925).

Pincite

Opinion

Litz, Judge:

This case is certified from the action of the circuit court ■overruling a demurrer to the bill, which avers that in June, 1923, the plaintiff, in exchange for a second-hand Buick ••automobile belonging to defendants, sold and delivered to them a Ford car of the value of $400.00 and, to cover the .agreed difference between the two cars, also executed and delivered to the defendants three promissory notes, for $66.66 •each, payable to the order of defendant, Sumner Lynch, and due respectively in August, October and December, 1923, ■on one of which the defendants have instituted suit.

It is further alleged that at the time of the transaction and •as inducement thereto the defendants falsely represented to the plaintiff that the Buick machine was in first class condition and good running order, and also warranted it to be •sound in every respect with the exception of a loose valve; that the car was in fact so■ defective in other respects plaintiff was compelled to expend $112.77 for repairs and to forego the use thereof for nineteen days, at an estimated loss of ■$5.00 per day.

The bill prays that the defendants be restrained from enforcing the collection of the notes and required to surrender ■them for cancellation; and that the plaintiff be decreed judgment upon an accounting between himself and the defendants.

If the plaintiff is entitled to relief he has a complete and *123 adequate remedy at law. Mylius v. Massillon Engine & Thresher Co., 70 W. Va. 576. The notes sought to be can-celled, being overdue, have lost their negotiability. “Equity refuses to cancel non-negotiable instruments, or negotiable' instruments overdue, for fraud, because the obligor, in such cases, has a full, adequate and complete defense at law, and stands in no danger.” Big Huff Goal Co. v. Thomas, 76 W. Va. 161.

The bill being plainly without equity, the demhrrrer should have been sustained, and it will be so certified.

jReversed and remanded.

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Litz, Judge:

This case is certified from the action of the circuit court ■overruling a demurrer to the bill, which avers that in June, 1923, the plaintiff, in exchange for a second-hand Buick ••automobile belonging to defendants, sold and delivered to them a Ford car of the value of $400.00 and, to cover the .agreed difference between the two cars, also executed and delivered to the defendants three promissory notes, for $66.66 •each, payable to the order of defendant, Sumner Lynch, and due respectively in August, October and December, 1923, ■on one of which the defendants have instituted suit.

It is further alleged that at the time of the transaction and •as inducement thereto the defendants falsely represented to the plaintiff that the Buick machine was in first class condition and good running order, and also warranted it to be •sound in every respect with the exception of a loose valve; that the car was in fact so■ defective in other respects plaintiff was compelled to expend $112.77 for repairs and to forego the use thereof for nineteen days, at an estimated loss of ■$5.00 per day.

The bill prays that the defendants be restrained from enforcing the collection of the notes and required to surrender ■them for cancellation; and that the plaintiff be decreed judgment upon an accounting between himself and the defendants.

If the plaintiff is entitled to relief he has a complete and *123 adequate remedy at law. Mylius v. Massillon Engine & Thresher Co., 70 W. Va. 576. The notes sought to be can-celled, being overdue, have lost their negotiability. “Equity refuses to cancel non-negotiable instruments, or negotiable' instruments overdue, for fraud, because the obligor, in such cases, has a full, adequate and complete defense at law, and stands in no danger.” Big Huff Goal Co. v. Thomas, 76 W. Va. 161.

The bill being plainly without equity, the demhrrrer should have been sustained, and it will be so certified.

jReversed and remanded.

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Bluebook (online)

126 S.E. 492, 98 W. Va. 121, 1925 W. Va. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berisford-v-lynch-wva-1925.

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