88 Fla. 48 | Fla. | 1924
On March 24, 1921, an action was begun against an endorser on three promissory notes dated respectively November 19, 1913, December 16, 1913, and October 14, 1913, the first two being payable in 60 days after date, and the last 90 days after date.
The defendant pleaded the five-year statute of limitations which is applicable to Instruments not under seal. The plea was demurred to on the theory that the note being under seal by the .maker, the 20-year statute applies to the endorsers as well as to the maker. The demurrer was overruled and final judgment rendered for the’ defendant on the demurrer. Plaintiff took writ of error.
The notes are alike except as to amounts and dates of
“The undersigned, as well as all sureties, endorsers, guarantors or other parties to this note, severally waive demand, protest and notice of demand, non-payment and protest; and consent that interest paid or to be paid, before or after maturity, may be at the rate of ten per cent, per annum.
“Now, shall it become necessary to collect this note through an attorney, the undersigned as well as all sureties, endorsers, guarantors or other parties to this note, severally agree to pay all costs of such collecting, including a reasonable attorney’s fee.
“Given under the hand and seal of each of the parties.
E. E. Cain Company (L. S.)
(Exhibit A)
By J. P. Wilson, Mgr. (L. S.)
“ (The note was endorsed on the back as follows) :
E. E. Cain,
J. P. Wilson,
E. Y. Burke.”
Where several parties sign a contract with seals or scrolls opposite the signatures of some of them only, those parties to the same contract to whose names no seal or scroll is affixed, may, under circumstances showing such an intent, be presumed to have adopted as their own the
Where an endorser merely writes his name on the back of a promissory note, it may not be a signing of the instrument within the meaning of the rule that one not using a seal may be presumed to have adopted the seal of another signer of the instrument .when apt words such as “witness our hands and seals” are used in the form of the instrument. See McLaughlin v. Brady, 63 S. C. 433, 41 S. E. Rep. 523. See also Jenkins v. Carmen, 112 Ga. 476, 37 S. E. Rep. 719.
Parties to a contract are liable according to the form in which they respectively execute the contract. One party may be liable in an action of assumpsit, while the other is liable in covenant. St. Andrews Bay Land Co. v. Mitchell, 4 Fla. 192; Somers v. Florida Pebble Phosphate Co., 50 Fla. 275, text 281, 39 South. Rep. 61.
The Statute provides that “an action upon any contract, obligation or liability founded upon an instrument of writing under seal” “can only be commenced” “within twenty years.” This statute must have reference to the relation of the defendant in the action to the instrument and not to the general or primary nature of the instrument upon which the action is brought. Otherwise the statute might conflict with organic rights.
In this ease the note (evidently made on a printed form suitable to be used by two or more makers) is payable to a bank that is the holder and plaintiff here, but not
While an action against the maker, whose signature on the note has a scroll attached to it, might be regarded as an action upon a “contract, obligation or liability founded upon an instrument in writing under seal,” within the meaning of the statute (Sec. 2939 Rev. Gen. Stats.), yet an action against the endorser on his endorsement whicii was made without other words and without affixing a- seal or scroll to his signature as endorser on the back of the
The demurrer to the plea of the five-year statute of limitations was properly overruled.
Affirmed.
