
    *Pitman v. Breckenridge & Crawford.
    July Term, 1846,
    Lewisburg-.
    1. Negotiable Instrument — What Constitutes — Case at Bar. — Mr. W. G. will pay to T. B. one hundred and twenty-five dollars on account of brick work done on the institution for, &c.
    Oct. 12th, 18-10. W. D.
    
    This is not a negotiable instrument: of the nonacceptance or nonpayment of which an endorser was entitled to notice.
    2. Instructions — Sufficiency of Evidence — Appellate Practice. — An instruction as to the sufficiency of evidence upon a point which is immaterial, is no error for which the appellate Court will reverse the iudgment.
    This was an action of assumpsit brought by Breckenridge & Crawford against Pit-man, in the Superior Court of Augusta county. On the trial the plaintiffs introduced the following paper with the endorsements upon it:
    Mr. William Craig and Matthew Blair will pay to Thomas Bagby the sum of one hundred and twenty-five dollars, on account of brick work done on the Institution for the education of the deaf, dumb and blind; and oblige yours, respectfully,
    October 12, 1840. Wm. Donoho.
    Messrs. Craig & Blair will please pay the within order to J. M. Pitman, and oblige yours, respectfulty,
    Oct. 12th, 1840. Thomas Bagby.
    Por value received, I assign the within claim to Breckenridge & Crawford.
    March 10th, 1841. John M. Pitman.
    The plaintiffs then proved that they had taken the draft from Pitman for goods sold him. That in a few days after it was assigned to them it was presented to Craig the drawee, who said he had no doubt it would be perfectly good, and when money came to his hands applicable to it, which he expected in a short time, he *would pay it. That several unsuccessful applications had been made to Craig for the money. That the draft had been presented to Craig by the defendant before the assignment to the plaintiffs, when he received the same answer given to the plaintiffs. That Craig & Blair owed Donoho nothing, but were agents of Donoho and his trustees to receive money from the visitors of the deaf, dumb and blind asylum for erecting- the buildings; and to disburse it upon the orders of Donoho to the trustees. That Craig afterwards received funds, but was directed by the trustees to apply them to other more pressing claims. And before the trial it was ascertained that no funds would come to the hands of Craig & Blair by which the draft might be discharged. This being all the evidence in the cause, the defendant, by his counsel, moved the Court to instruct the jury: — That unless they were satisfied from the evidence, that the plaintiffs had, within a reasonable time after said draft had been assigned by the defendant, presented the' same to Craig & Blair for acceptance and payment; and if neither paid or accepted, then that the plaintiffs had within a reasonable time thereafter given the defendant notice of - said nonacceptance or nonpayment, that then the jury should find for the defendant. But the counsel for the defendant admitting that the object was, that the Court should instruct the jury that this was such an instrument as required demand and notice of dishonour, as bills of exchange and such like negotiable instruments, the Court refused to give the instruction; and instructed the jury, that this was not such an instrument. And that although the plaintiffs had given no notice but by bringing their suit, unless the defendant had been injured by the delay, the plaintiffs were entitled to recover, if they had in the mean time, used due diligence to recover the money; and had failed. To this opinion of the Court the defendant excepted.
    ^The cause was then argued before the jury, and they having retired for a minute, returned into Court and asked the Court to instruct them, whether there had been unreasonable delay on the part of the plaintiffs. And thereupon, the Court instructed the jurj” that there had not been unreasonable delay on the part of the plaintiffs. To the giving this instruction the defendant excepted.
    The jury having found a verdict for the plaintiffs for 125 dollars, with interest from the 14th of September 1841, till paid, the Court gave judgment thereon, and the defendant applied to this Court for a superse-deas, which was allowed.
    Fultz, for the appellant.
    Michie, for the appellees.
    
      
      Negotiable Paper. — See monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      Instructlons — Sufficiency of Evidence on Immaterial Matters — Appeiiate Practice. — In admitting or excluding evidence, I concede the authorities guard closely the line of demarkation between law and fact, and watch with zealous eye the encroachment of the court on the province of a jury; but, whilst they do not sanction the opinions of the court as to the “weight, effect, or sufficiency of evidence” on matters material, or such as would influence a jury to the prejudice of a party, yet, the doctrinéis not so rigid in its application to opinions, or statements of the court on points immaterial, or such as cannot operate injury to a party. In such case it is not error for which an appellate conrt will reverse a judgment. Junen Mooris, In Newlin v. Beard, 6 W. Va. 126, citing principal case, and Colvin v. Menefee, 11 Gratt. 87.
      Same — Harmless Errors — Appellate Practice. — In Corder v. Talbott, 14 W. Va. 284, it is said: “It is true, as shown by the decisions in Virginia and in this state, that the court will not reverse a judgment, merely because the court misinslructed the jury, when all the facts proven in the case are in the record, and it appears thereby that the appellant could not have been injured by the misinstruction. See Insurance Company v. Hendren, 24 Gratt. 536; Colvin v. Menefee, 11 Gratt. 87; Pitman v. Breckenridge, 3 Gratt. 127; Clay v. Robinson, 7 W. Va. 350.” To the same effect, see the principal case cited in Ballard v. Whitlock, 18 Gratt. 242; Osborne v. Francis, 38 W. Va. 323, 18 S. E. Rep. 595; foot-note to Crawford v. Morris, 5 Gratt. 91; foot-note to Colvin v. Menefee, 11 Gratt. 87 (where the question is discussed at some length and many cases in point are cited); foot-note to Binns v. Waddill, 32 Gratt. 588.
      See also, monographic note on “Instructions” appended to Womack y. Circle, 29 Gratt. 192.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the bill or order upon which this action is founded not being negotiable under the law merchant, the responsibility of the plaintiff in error to the defendants in error was not as endorser of a bill of exchange, but as assignor of a chose in action; and consequently that it was not incumbent upon the defendants in error to give notice to the plaintiff in error of the nonacceptance or nonpayment by the drawees of the said bill or order. And that the drawees in said bill or order not being personally liable for the payment thereof, the plaintiff in error had no means of coercing such payment from them,' and could only obtain the same by the voluntary act of the drawees; and therefore, that their recourse against the plaintiff in error, as assignor, could not be lost but by their neglect to obtain such voluntary payment when it was in their power to do so. The Court is therefore of opinion that there was no error to the prejudice of the plaintiff in error, in the refusal of the Circuit Court to give the instruction asked *for by'the plaintiff in error, or in the instruction actually given to the jury, as stated in the first bill of exceptions. And the Court is further of opinion, that the. instruction given to the jury, stated in the second bill of exceptions, appears to have been founded upon the facts set forth, and the instruction stated in the first bill of exceptions, and imports that there had been no unreasonable delay on the part of the defendants in error in giving notice to the plaintiff in error of the nonacceptance or nonpayment by the drawees of the said bill or order; and therefore, inasmuch as no such notice was incumbent on the defendants in error, there was no error to the prejudice of the plaintiff in error in the instruction stated in the second bill of exceptions.

Judgment affirmed.  