83 Fla. 55 | Fla. | 1922
The plaintiff in error in 1916 was the President of the Bank of Commerce at Tampa; also. President of the Bank of Center Hill, which bank he visited six or seven times each year, and from the cashier of which, J. M. McMullen, received daily reports. In April, 1916, at a meeting of the directors of Center Hill Bank, J. M. Harvey was authorized to loan twenty to twenty-five thousand dollars “on outside paper.” In May, 1916, tbe cashier of Center Hill Bank received from Mr. Harvey a note for two thousand dollars signed by Frank L. Cooper, F. M. Williams and three others, payable ninety days after date; the instructions were to discount the note and place the proceeds of it to the credit of the Bank of Commerce,
Some of the stockholders offered'to negotiate with him for the purchase of the stock owned by him and his associated interests. The Tampa loans had been “discussed very freely” between them previous to that time. D. C. Smith who was not a stockholder, but whose wife was, and whose interests he "was looking after; Mr. J. C. McMullen, who was cashier and a stockholder, and Mr. J. M. Harvey held a private conversation “in regard to the Tampa loans.” At this point it is better to quote the testimony of Mr. McMullen as the same appears in the bill of exceptions : “We brought out the subject that we were not satisfied to take over his (Harvey’s) stock and release him from responsibility because we thought that with his connection he was responsible to the bank for these loans. I do not recall the exact words of the conversation, but the meaning was:” “By Mr. Shackleford: Now we object to the witness giving his conclusion.” “By the Court: Tell what you finally did and answer as near as you can what words were used to come to that conclusion.” “A. Wé requested Mr. Harvey that in consideration of the fact that
“Now just-proceed and tell what was done under this agreement.” To this the defendant objected, which objection the’court overruled and defendant excepted. “What was done in furtherance of the agreement in relation to this stock and notes?” “A. Well, we proceeded with our transaction. I went to Jacksonville a few days later and arranged to get the money to take over Mr. Harvey’s interest, and as soon as the money was secured I came to Tampa and bought Mr. Harvey’s stock, with the exception of ten shares, I think, and gave him a check for the full amount of his stock and the Peninsular Trust Company of which he was an officer. The stock was delivered to me and re-issued later to Mrs. Smith and others.”
In this transaction Mr. McMullen acted for the Bank of Center Hill, and in purchasing the stock for D. C. Smith and Mr. John Smith, and bought none of the stock for himself. The number of shares purchased from Harvey was fifty-four. Following this transaction Mr. Harvey on March 7, 1917, wrote from Tampa the following letter to Mr. J. S. McMullen, Cashier, Center Hill,, upon letter paper of the Bank of Commerce:
“Mr. J. S. McMullen, Cashier,
“Center Hill.
“Dear Sir:
, “Enclosed herewith I hand you the following notes in settlement of the notes as per your letter of the 2d:
“F. M. Williams, et al. $1,500, and interest $20.
“T. M. Jones, $1,100 and check $172, in payment of interest due March 8th.’
“Mr. Williams assures me that at least half if not all of the $1,500, will be paid at the next maturity; and you will notice that $150 has been paid on the Jones notes.
“All of these will be taken up wheneyer you may require, but as you have ample cash reserve at present, with prospects of a considerable increase in the next 3 or 4 weeks, I see no reason why this money should not be employed. As I have told you before, whenever you find it necessary to reduce your loans, any loans transferred to you from Tampa will be taken care of.
“I hope the frost of Monday night did no damage to the bean crop.
“With best wishes,
“Yours truly,
“J. M. HARVEY, President.”
Objection to the reading this letter in evidence-was overruled. Mr. Harvey remained President of the Center Hill Bank until July 31st, T917, without compensation, when Mr. McMullen became President. The remaining ten shares of stock held by Mr. Harvey were transferred by him to I. R. LeG-ette who was a director of the bank. Mr. Harvey received book value for his stock.
The first count of the declaration declares upon an agreement to pay the Tampa loan. The second count declares upon a guaranty of the defendant that the debt would be paid, made by letter in March, 1917, the consideration being a further extension of time for the payment of the note, and the third count declares upon the defendant’s agreement evidenced by the letter of March, 1917, to pay the debt.
A demurrer to the declaration was overruled. Seven pleas were filed to each the first and second counts, and eight pleas to the third. Demurrers to these were sustained, except as to the second plea to each count, each was merely a denial seriatim of the allegations of the three counts of the declaration.
The order sustaining the demurrer to the pleas constitutes the basis of fifteen of the seventeen assignments of error.
A plea called a fourth plea was filed, upon which issue was joined. That plea denied the agreement alleged in the declaration, and denied that the plaintiff caused the stock to be purchased as alleged, and avers that therefore there was no lawful consideration for the alleged agreement or promise by the defendant. The plea was duplicitous because it first denied the agreement, and then admitted it, but averred it to be without consideration. The general issue was pleaded to each count of the declaration.
There was no error in the court’s order sustaining the demurrer to these pleas because the action was upon an independent .promise made by defendant for a valuable consideration which was executed by the plaintiff, an unconditional guaranty of the payment of the Tampa loan, supported by a valuable consideration. The liability of the guarantor was fixed by the failure of the makers of the note to pay at maturity. See 12 R. C. L. 1064; Pierce v. Nerrill, 128 Cal. 464, 61 Pac. Rep. 64; Jenkins v. Wilkinson, 107 N. C. 707, 12 S. E. Rep. 630. That the alleged promise was within the statute of frauds was a matter admissible under the general issue. See Archbold’s Nisi Prius,- 175. No consideration for the promise was covered by the new fourth plea, so the error in overruling the pleas setting up no consideration was cured by the new fourth plea and the plea averring that the defendant was an
We think that each count of the declaration stated a cause of action, therefore the demurrer to it was properly overruled. Whether the transaction as testified to by Mr. McMullen was within the statute of frauds, or being within it the statute was complied with, is the question presented by this record. All other questions arising upon the pleadings and upon the introduction and rejection of evidence lead to that problem. If the transaction was not within the statute of frauds or was rescued from it by defendant’s letter of March, 1917, the evidence was quite sufficient to support the verdict. If, however, the agreement entered into between the defendant and the Bank of Center Hill through Mr. McMullen and Mr. Smith was within the statute of frauds and the letter not a sufficient memorandum of the agreement to satisfy the statute, the judgment of course should be reversed. The evidence is quite' sufficient to support the conclusion of fact that the bank entrusted to Mr. Harvey alone the matter of making the Tampa loans, that the Bank of Commerce in Tampa of which he was president received the benefit of the loans so far as the plaintiff bank was concerned; that at the stockholders meeting in January, 1917, while Mr. D. C. Smith owned no stock in the plaintiff bank, his wife did, and that he acted in her behalf and for her interest as a stockholder, and that in co-operation with Mr. J. S. Me-
We are of the opinion that the verbal promise as testified to by Mr. McMullen and Mr. D. C. Smith was not within the statute of frauds. Punta Gorda Bank v. State Bank of Ft. Meade, 52 Fla. 399, 42 South. Rep. 846; Craft v. Kendrick, 39 Fla. 90, 21 South. Rep. 803.
The consideration moving from the stockholders of the Center Hill Bank to the defendant operated to the advantage of the defendant and placed him under a pecuniary obligation to them. The defendant owned a large share of the stock of the Center Hill Bank, its book value depended largely upon whether the Tampa loans negotiated by the
If the letter itself did not constitute a sufficient memorandum in writing to take a promise out of the statute which otherwise would be within it, and upon this point we express no opinion, the promise made orally by the defendant was an original unqualified guaranty of the payment of the Tampa loans, made for a valuable consideration independent of the debt and was enforceable in the action. The demurrer was to the declaration in its entirety and the first and third counts were good even if the second, shoitld be considered bad.