36 Fla. 136 | Fla. | 1895
One of the assignments of error insisted on by counsel for apellants is, that the court erred in overruling-the demurrer to the third plea. There are counts in the declaration to which, the third plea is, applicable^
The third plea alleges that after default in paying the account on the part of Cohen, the principal debtor, appellants closed and settled the same and extended the time of payment thereof by taking Cohen’s notes, without the consent of the guarantor, Williams. • The plea distinctly alleges that time for the payment of the account was extended by taking the notes, and if the allegation that the account was closed and settled does not show a discharge and satisfaction of the same, within the principle of Solomon vs. Pioneer Co-operative Co., 21 Fla. 374. S. C. 58 Am. Rep. 667, it is clearly shown that an extension of time for payment was given to Cohen without the consent of Williams. This plea, if true, presents a good defense, and the ■demurrer admits the facts pleaded to be true. As we will see further on that while the taking of the notes for an antecedent simple contract debt does not in the absence of an agreement to that effect discharge the debt, it does extend the time of payment of the same until the maturity of the notes.
It is claimed by counsel for appellants that no issue was joined on the replication to the third plea, the •surrebutter to the replication on the fourth plea, and the replication to the fifth or additional plea. Appellants went to trial on the pleading without raising the •objection suggested here. It was held in Livingston vs. Anderson, 30 Fla. 117, 11 South. Rep. 270, reviewing former decisions of this court, that where a plea, •or subsequent pleading responsive to a declaration or former pleading, sets up new matter in avoidance, a reply must be made to or issue joined on such pleading, without which it would be error to submit the •case to the jury, but the absence of a similiter to a
No exceptions are raised to the relevancy or competency of any of the evidence introduced on the trial.
Appellants’ testimony was taken under commission on interrogatories, and during the term of court at which the case was tried, but before the day of trial, the court, on motion of counsel for appellee, ordered the opening of the deposition. Objection is made to the order of the court directing the depositions to be opened. The court had the authority under the statute to make the order (McClellan’s Digest, p. 460, sec. 7), and there is nothing before us to show that the court acted improperly in making the order, or that appellants were in any way whatever inj ured thereby. They offered the depositions in evidence and they were read to the jury without objection.
Exceptions were taken to the charge of the court to-the jury, but before considering them, reference will be made to the evidence in the case. On the 23d of April, 1888, appellee’s testator, R. S. Williams, addressed a letter to appellants, to the effect that his son-in-law, M. R. Cohen, was going to open a store in De - catur, Alabama, and desired to buy his stock from them, and the writer stated that he wanted appellants
Before commencing to give his charge the judge, in the presence of the jury, complimented the counsel in the case for the industry with which they had collected
The rule established in this State by legislative authority is, that the trial judge must not intimate his •opinion as to the weight or effect of evidence submitted to the consideration of the jury. This court has steadily refused to sanction any violation of this rule, unless it was apparent that no harm was thereby done. Williams vs. La Peritiere, 32 Fla. 491, 14 South. Rep. 157, and cases cited. In no more effective way could judge intimate his opinion as to the effect of evidence before him than by saying it was similar to that of an adjudged case commented on as being sufficient to sustain the finding of a jury. If a judge can be permitted to state the facts of one case in the hearing of the jury, and express his opinion as to their effect, and then declare the facts of the case before him are similar to the one commented on, he would, in effect tell the jury what were his views of the evidence before them. Moore & Co. vs. Robinson, 62 Ala. 437. The comments of the judge on the case of Fellows vs. Prentiss, reported in 45 American Decisions, was an invasion of the rule prohibiting the judge from charging ■upon the effect or weight of the evidence, and unless we can clearly see that no harm thereby resulted to the appellants, the decision appealed from can not stand. If competent testimony submitted to a jury is •conflicting, it is clearly a violation of the rule for the ■court to intimate an opinion as to its effect, but where
On the testimony furnished by appellants themselves-we do not see that they can recover at all in the present case. The undoubted rule is, as already stated, that any binding agreement between the creditor and principal debtor, based upon sufficient consideration, for an extension of time of payment for a definite-period without the consent of the surety or guarantor, whereby the creditor’s hands are tied so that he-can not sue and collect the debt until the expiration of the time granted, will discharge the surety or guarantor. 9 Am. & Eng. Ency. of Law, p. 83, notes 1, 4; 2 Brandt on Suretyship and Guaranty, sections 343, 344; King vs. State Bank, 9 Ark. 185, S. C. 47 Am. Dec. 739; Fridenburg vs. Robinson, 14 Fla. 130; Pfeiffer and Sullivan vs. Knapp, 17 Fla. 144. It is true, as-a general rule, that the mere acceptance by a creditor from his debtor of a promissory note for a pre-existing simple contract does not, in the absence of an agreement to that effect, extinguish the original demand. May and Sloan vs. Gamble, 14 Fla. 467; Salomon vs. Pioneer Co-operative Co., 21 Fla. 374, S. C. 58 Am. 667. In such case no recovery can be had on the-original cause of action unless the note is produced to
The letter of appellants to Cohen enclosing the notes for him to sign, and which is written evidence of the conditions upon which the notes were executed, states that it would give him all the time he should require to pay them, and they expected him to meet same when they became due. When appellants subsequently wrote to Williams for payment they stated that the amount due on the purchase of April 25th, 1888, had been closed by notes, memoranda of which were enclosd. The letter of Williams to appellants in December, 1888, can not be construed into a consent on his part for them to take the notes from Cohen and tie up their hands so shat they could not demand payment of Cohen until a future day. The letter seems to recognize a continuing guaranty under the letter of April 23d to pay for goods that Cohen might purchase, but it goes no further than to recognize Williams’ liability to pay the balance when Cohen quit paying. According to appellants’ own showing, no goods were purchased from them by Cohen after April 25th, 1888, and the bills for this purchase were due by account four months from delivery. There is nothing in the statements in the letter to the effect that Williams would pay when Cohen quit remitting, and that appellants need not be uneasy about the debt for which he, Williams, stood good, to justify a conclusion that the latter consented to the taking of the notes and the extension of time of payment of the account to a future date. The notes were commercial paper, and it is clearly shown, that they were given for the amount of the account, with interest thereon from the time when due until their maturity. That the notes were accepted by appellants and discounted by them in bank, is
The judgment will be affirmed, and it will be so* ordered.