Whitteker v. Charleston Gas Co.

16 W. Va. 717, 1880 W. Va. LEXIS 49

• Court: West Virginia Supreme Court
• Decided: May 4, 1880
• Status: Published

Opinion

Moore, Judge,

delivered the opinion of the Court:

Taking the view I do of this cause, it seems strange that the defendant did not file a demurrer to complainant’s bill. But even without demurrer, the court, at the hearing of the cause, should have dismissed the bill with costs. The allegations of the bill setting up the contract plainly indicate that complainant had a full, adequate and complete remedy at law. As to the note, his remedy was clearly at law. The object of the bill seems to be for the purpose of inducing a court of chancery to usurp law jurisdiction, by permitting the complainant to dispose of the collateral by public auction, instead of taking the plain track prescri bed by law for the collection of such collaterals.

syllabus 1. Syllabus 2, Syllabus 3. It is well settled, that when a chose-in-action, such as a bond, note or accepted order, on a third person is transferred and delivered to a creditor, as collateral security for the debt, it is the right of the debtor to sue upon such ehose-in-aetion at law, and, if necessary, to use the name of the legal owner of such ehose-in-action; and it is his duty to use reasonable care and diligence to make it available, and if by negligence, or wrongful act or omission on his part, loss is sustained on such ohose-in-adion, such loss should be borne by the creditor. First National Bank of Wellsburg v. Campbell and Henry Kimberland, &c., supra, page 555; also see Wakeman et al. v. Gowby, 10 Bosw. 208; Roberts v. Thompson & Clarke, 14 Ohio St. 1. The creditor in such case having a complete remedy at law cannot of course bring a suit in chancery to have such ohose-in-aotion sold and the proceeds applied to the payment of his debt. The order given by the recorder of Charleston on the treasurer having been transferred to the plaintiff’s assignor as collateral security for the note, by the defendant, it was the right as well as the duty of the plaintiff to proceed at law to enforce the payment of the order. Plaintiff had no right himself to sell it; such right of sale not being expressly included in the agreement by which the defendant transferred it, and without such express agreement no power of sale was conferred. Nelson et al. v. Willington, 5 Bosw. 178, and Brookman et al. v. Metcalf, 5 Bosw. 429. In the case of First National Bank of Wellsburg v. Gampbell and Henry Kimberland supra, page 555, the order was given on a private corporation, but the same principles are applicable when the order is given on a municipal corporation. In either case if the creditor receives such order as collateral security for a debt, and it is accepted by the drawee, or is drawn, as in this case by an officer of the corporation, so as not to make an acceptance necessary to create a legal obligation on the corporation, the creditor must collect the order, and a court of equity has no jurisdiction to sell such order upon the application of the creditor.

The decrees of the circuit court appealed from must be set aside, reversed and annulled, with costs in this court expended, and this court proceeding to render such decree as the circuit court should have done, doth adjudge that the said Henry T. Whitteker holds the order upon the treasurer of the city of Charleston as. collateral security for the note assigned to him according to the contract of the parties, and not as purchaser; and the bill of the plaintiff must be dismissed, and the defendant must recover of the plaintiff his costs about its suit in the circuit court of Kanawha county expended.

The Other Judges Concurred.

Decrees Reversed.