This is a writ of error to a judgment of the circuit court of Marshall County on directed verdict for $13,333.98 in favor of the plaintiff and against the defendants.
The proceeding was upon notice of motion for judgment on a collateral, negotiable note of $12,000.00 dated at Wheeling, September 21, 1929, executed by G. W. Hannan and W. H. Koch, payable to the order of themselves, on demand, with interest, and indorsed by them. The plaintiff's evidence consisted of the note with the supplementary testimony of its assistant cashier as to the bank's possession of the note and the amount due thereon, and that value had been paid therefor by the bank. The only evidence offered on behalf of both defendants (not admitted by the court) was that of a Wheeling broker with reference to the market value, on specified dates, of the stock which had been placed with the note by the makers as collateral security. Certain offers of evidence on behalf of defendant Koch are hereinafter discussed.
"The mere possession of a negotiable instrument, produced in evidence by the indorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstances impeaching its validity; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary), prima facie establishes his case; and he may there rest it; the burden of proving that a holder did not acquire it bona fide, for value, and without notice, is on the defendant." 2 Daniel on Negotiable Instruments (7th Ed.), section 945. Consult: 8 Corpus Juris, p. 473; Idem, p. 980; West Virginia Code 1931, 46-4-2, 7 and 9; N. I. L., sections 52, 57 and 59; Bank v.Simmons, *Page 793 43 W. Va. 79, 27 S.E. 299; Savings Bank v. Haddix, 97 W. Va. 536,125 S.E. 362.
The execution and indorsement of the note by Hannan and Koch is not questioned. The presumptions of law arising from the plaintiff's possession of the note are in nowise overcome. Its prima facie right is not overthrown by anything appearing in the record. The offer of defendant Koch to prove that he did not receive any of the proceeds of the note, that he was a mere accommodation maker, and that this fact was known to the plaintiff, was inconsequential. "The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse." Code 1931, 46-5-1; N. I. L., section 60. "Under the statute (N. I. L., section 60), the maker of a promissory note is 'primarily liable' thereon, though he signs only for accommodation." Crawford's Negotiable Instruments Law (4th Ed.), page 119. Cf. 8 Corpus Juris, p. 276. "Accommodation paper is a loan of the maker's credit without restriction as to the manner of its use. * * * Until it is negotiated the maker can withdraw from and rescind his engagement upon it. But as soon as the instrument has passed into the hands of a holder for value the liability of an accommodation maker becomes fixed, and may be enforced although the holder knows him to be only an accommodation party." 3 Ruling Case Law, page 1137.
Defendant Koch also offered to prove at the trial that Hazlett Burt were never his agents. This offer, refused by the court, was made apropos of an averment in the notice of motion for judgment that the note was delivered to the plaintiff by and through the defendants' agents, Hazlett Burt. We are of opinion that the trial court properly refused the offer of defendant Koch on the agency matter. The primary and important elements are these: (1) the execution and indorsement of the note by Hannan and Koch; (2) the possession of the note by the plaintiff. The payees of the note having indorsed it, subsequent indorsements were not essential to its negotiation. On the merits — basic, contractual, legal liability — what difference whether Hazlett Burt were or were not agents of Hannan and Koch? It is not material whether the note came into the possession of the bank directly from the *Page 794 indorsers, or from their agents, if any they had, or from intermediary assignees. The result is the same in either instance — the makers are liable. Therefore, we are of opinion that the averment in the notice that the note had come to plaintiff through the agency of Hazlett Burt is wholly immaterial to the issue.
Unnecessary matter contained in pleadings at law is deemed surplusage. 21 Ency. Pl. Pr., p. 230. It not only does not vitiate a pleading on demurrer, Martin v. Cochran, 94 W. Va. 432,119 S.E. 174, but it may properly be disregarded at the trial. 21 Ency. Pl. Pr., p. 257. "Facts not necessary to maintain the action or defense need not be alleged, and if alleged will be treated as surplusage and need not be proven."Lohr v. Wolfe, 71 W. Va. 627, 77 S.E. 71, 72. It follows that the offer of Koch to prove that there was no such agency, not being material to the issue, was properly refused.
The old rule that in an action on a legal instrument there may not be joined as defendants a surviving maker and the personal representative of a deceased maker because as to the former the judgment would be de bonis propriis and as to the latter de bonis testatoris has been changed by statute, Code 1931, 55-8-8.
The judgment is affirmed.
Affirmed.