CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 8. ACTIONS ON CONTRACTS.
§55-8-1. Jurisdiction in proceedings on penal bonds.
Where the proceeding before a court is on a penal bond, with
condition for the payment of money, or for the performance or
forbearance of any other act or thing, the jurisdiction shall be
determined as if the undertaking to pay such money, or to do or
forbear the doing of such other act or thing, had been without a
§55-8-2. Action of debt or assumpsit on note or writing; action of
debt for any past-due installment.
An action of debt or assumpsit may be maintained on any note
or writing, whether sealed or not, by which there is a promise,
undertaking, or obligation to pay money, if the same be signed by
the party who is to be charged thereby, or his agent. And an
action of debt may also be maintained on any such note or writing
for any past-due installment of a debt payable in installments,
although other installments thereof be not due.
§55-8-3. Action of assumpsit for breach of contract.
An action of assumpsit shall lie in all cases to recover
damages for the breach of any contract, express or implied, and, if
in writing, whether under seal or not.
§55-8-4. General issue in debt or assumpsit on sealed instrument.
The general issue in an action of debt on a sealed instrument
shall be nil debet, and in an action of assumpsit on such
instrument it shall be non assumpsit. It shall not be necessary in
either case to plead non est factum, but any evidence admissible
under a plea of non est factum may be given under the general
issue, provided there be filed with such plea of the general issue
the affidavit required by section forty-six, article four, chapter
fifty-six of this code.
§55-8-5. Validity of writing payable to person dead at time of
A bond, note or other writing to a person or persons who, or
some of whom, are dead at the time of its execution, shall be as
valid as if such person or persons were then alive, and may be
proceeded on in the same manner as if it had been executed in the
lifetime of such person or persons and such person or persons had
died after its execution.
§55-8-6. Liability of personal representative of deceased joint
judgment debtor, obligor, promissor or partner.
The representative of one bound with another, either jointly
or as a partner, by judgment, bond, note or otherwise, for the
payment of a debt, or the performance or forbearance of an act, or
for any other thing, and dying in the lifetime of the latter, may
be charged in the same manner as such representative might have
been charged, if those bound jointly or as partners had been bound
severally as well as jointly, otherwise than as partners.
WVC 55 - 8 - 7
§55-8-7. Action against makers, drawers, endorsers, acceptors,
assignors or absolute guarantors.
(a) The holder of any note, check, draft, bill of exchange or
other instrument of any character, whether negotiable or not or any
person entitled to judgment for money on contract, in any action at
law or proceeding by notice for judgment on motion thereon, may
join all or any intermediate number of the persons liable by virtue
thereof, whether makers, drawers, endorsers, acceptors, assignors,
or absolute guarantors, or may proceed against each separately,
although the promise of the makers, or the obligations of the
persons otherwise liable, may be joint or several, or joint and
several. If notice or other process is not served upon all persons
proceeded against, judgment may nevertheless be given against those
liable who have been served as provided by law with notice or other
process. These actions or proceedings by notice may be had from
time to time in the same or any other court until judgment is
obtained against every person liable or his personal
representative. However, plaintiff shall have satisfaction of but
one of two or more judgments rendered on the same demand.
(b) In any action at law, whether in circuit court or
magistrate court, on a note or contract, express or implied, for
the payment of money, if: (1) The plaintiff files with the
complaint an affidavit made by the plaintiff or an agent, stating therein to the best of the affiant's belief the amount of the
plaintiff's claim, that the amount is justly due, and the time from
which plaintiff claims interest; and (2) a copy of the affidavit
together with a copy of any account filed with the complaint is
served upon the defendant, the plaintiff is entitled to a judgment
on the affidavit and statement of account without further evidence
unless the defendant files an answer denying the claim or otherwise
makes an appearance before the court denying that the plaintiff is
entitled to recover from the defendant on the claim. The affidavit
must show the calculation of the amount sought. The calculation is
to also include an itemization of the principal and any interest,
insurance or other charges of the original obligation. The
calculation is also to include an itemization of all credits to the
original obligation including credits to principal, interest,
insurance, any other charges, rebates of unearned interest, rebates
of insurance, rebates of other charges and proceeds of sale of all
collateral. If the defendant's pleading or affidavit admits that
the plaintiff is entitled to recover from the defendant a sum
certain less than that stated in the affidavit filed by the
plaintiff, judgment may be taken by the plaintiff for the sum so
admitted to be due and the case will be tried as to the residue.
§55-8-8. Joinder of personal representative of decedent as
defendant in action under §55-8-7; judgment to affect
only estate of decedent.
In every action or motion in which a decedent, if living,
could be joined as defendant with another or others under section
seven of this article, his personal representative may be joined
with him or them, or with the personal representative of any one or
more of them. In every such case in which a judgment is rendered
against a personal representative, alone or jointly with another or
others, such judgment, as to such representative, shall affect only
the estate of his decedent, and shall, as to such estate, have the
same force and effect as if rendered in an action in which such
representative is sued alone. But nothing in this section shall
prevent a plaintiff, at his election, from proceeding separately
against the representative of any decedent.
§55-8-9. Action by assignee in own name; defenses and setoff;
joinder of claims.
The assignee of any bond, note, account, or writing, not
negotiable, or other chose in action arising out of contract or
injury to personal or real property, may maintain thereupon any
action in his own name, without the addition of "assignee," which
the original obligee, promisee, payee, contracting party, or owner
of such chose in action might have brought; but shall allow all
just defenses and sets-off, not only against himself, but against
the assignor, before the defendant had notice of the assignment.
In every such action the plaintiff may unite claims payable to him
individually with those payable to him as such assignee, provided
it be otherwise proper to join them. But nothing in this section
shall be construed to make assignable any right of action not
§55-8-10. Assignee entitled to recover from assignor; defenses
Any assignee mentioned in section nine of this article may
recover from any assignor of such writing, whether joined as
defendants under section seven of this article, or proceeded
against separately, but a remote assignor shall have the benefit of
the same defenses as if the suit had been instituted by his
§55-8-11. Limitation on jurisdiction of equity as to suit by
A court of equity shall not have jurisdiction of a suit upon
a bond, note, or writing, by an assignee or holder thereof, unless
it appear that the plaintiff had not an adequate remedy thereon at
§55-8-12. Third party may sue on covenant or promise made for his
If a covenant or promise be made for the sole benefit of a
person with whom it is not made, or with whom it is made jointly
with others, such person may maintain, in his own name, any action
thereon which he might maintain in case it had been made with him
only, and the consideration had moved from him to the party making
such covenant or promise.
§55-8-13. Action of account.
An action of account may be maintained against the personal
representative of any guardian or receiver; and also by one joint
tenant, tenant in common, or coparcener or his personal
representative against the other, or against the personal
representative of the other, for receiving more than his just share
§55-8-14. Agreements to indemnify against sole negligence of the
indemnitee, his agents or employees against public
policy; no action maintainable thereon; exceptions.
A covenant, promise, agreement or understanding in or in
connection with or collateral to a contract or agreement entered
into on or after the effective date of this section, relative to
the construction, alteration, repair, addition to, subtraction
from, improvement to or maintenance of any building, highway, road,
railroad, water, sewer, electrical or gas distribution system,
excavation or other structure, project, development or improvement
attached to real estate, including moving and demolition in
connection therewith, purporting to indemnify against liability for
damages arising out of bodily injury to persons or damage to
property caused by or resulting from the sole negligence of the
indemnitee, his agents or employees is against public policy and is
void and unenforceable and no action shall be maintained thereon.
This section does not apply to construction bonds or insurance
contracts or agreements.
WVC 55 - 8 - 15
§55-8-15. Choice of law for computer information agreements.
A choice of law provision in a computer information agreement
which provides that the contract is to be interpreted pursuant to
the laws of a state that has enacted uniform computer information
transactions act, as proposed by the national conference of
commissioners on uniform state laws, or any substantially similar
law, is voidable and the agreement shall be interpreted pursuant to
the laws of this state if the party against whom enforcement of the
choice of law provision is sought is a resident of this state or
has its principal place of business located in this state. For
purposes of this section, a "computer information agreement" means
an agreement that would be governed by the uniform computer
transactions act or substantially similar law as enacted in the
state specified in the choice of law provision if that state's laws
were applied to the agreement.
WVC 55 - 8 - 16
§55-8-16. Choice of law in product liability actions.
(a) It is public policy of this state that, in determining the
law applicable to a product liability claim brought by a
nonresident of this state against the manufacturer or distributor
of a prescription drug or other product, all liability claims at
issue shall be governed solely by the product liability law of the
place of injury ("lex loci delicti").
(b) The amendments to this section enacted in 2015 shall be
applicable prospectively to all civil actions commenced on or after
July 1, 2015.