The scant averment of material facts in the notice of motion for judgment herein disturbed me initially. It is a cardinal rule of pleading in cases on bills and notes that the declaration or other pleading must "allege facts showing plaintiff's title or right to sue." 8 C. J. 886. Accord: 14 Ency. Pl. Pr. 503; 3 Rawle C. L. 1336; Bank v. Hysell, 22 W. Va. 142;Young v. Bray, 54 Mont. 415, 170 P. 1044; Oulvey v.Converse, 326 Ill. 226, 157 N.E. 245; Marvick v. Knight,51 S.D. 151, 212 N.W. 866. There are a number of recitals in the notice relating to the obligation and to the duty of the makers of the note and to the legal effect of the instrument. But there is no specific allegation that the bank is the owner or the holder of the note. The sole allegation of fact relating to the bank's *Page 795 title to the note is that its makers "delivered" it (through their agents, etc.) to the bank. However, in Bank v. Howard,71 W. Va. 57, 58-9, 76 S.E. 122, this Court held that an averment that a note was delivered to the plaintiff was equivalent to an averment that the plaintiff owned the note.
The notice does not allege directly that the note is unpaid. As early as 1878, Judge Green stated it to be "settled beyond controversy" in the Virginias that an allegation of non-payment was requisite. See his opinion in Douglas v. Land Co., 12 W. Va. 502,510-511. Accord: Smoot v. McGraw, 48 W. Va. 144,35 S.E. 914; Danser v. Mallonee, 77 W. Va. 26, 29, 86 S.E. 895. The notice does allege severally that each maker of the note is "indebted" to the plaintiff for the principal and interest of the note. Facts relied on in common law pleadings must be stated directly and not left to argument and inference. SeeTimmons v. Trust Co., 173 S.E. 79 decided at the present term of this Court. But the notice herein being a pleading under the Code and not the common law, may be viewed with indulgence.Hall v. Railroad Co., 103 W. Va. 287, 289, 137 S.E. 226. If the note were paid, the makers could not be indebted on the note. Consequently, an indulgent view permits us to hold that the averment of indebtedness is equivalent to an averment that the note is unpaid. Deutsh v. Korsmeier, 59 Ind. 373, 374; Howard v. Richards, (Nev.) 90 Am. Dec. 520; 14 Ency. Pl. Pr. 544; 4 Stand. Ency. of Pro. 253-4.
It would seem, therefore, that the averment is sufficient to permit a recovery.