78 Fla. 294 | Fla. | 1919
— The plaintiff in error as plaintiff below brought an action against D. H. McMillan and J. A. Holloman for damages for breach of contract. It was alleged that the defendants agreed to purchase from the plaintiff certain lots in or near the City of Jacksonville and agreed to pay the plaintiff therefor the sum of $25,000.00, of which $2,500.00 was to be paid in cash, a mortgage for $2,000.00 on part of the property to be paid, another mortgage for $8,000.00 on certain of the lots and other property to be paid, and the remainder to be paid in three installments of $4,000.00, $5,000.00 and $3,500.00, due respectively on the first day of February, 1914, 1915, 1916, with interest, the plaintiff agreeing to make and deliver to the defendants a good and sufficient warranty deed for the property agreed to be sold upon the payment of the aforesaid sums of money, the land to be subject to the mortgages mentioned if the latter had not been paid.
It is alleged that the plaintiff let the defendants into possession of the land, who paid the sum of $2,500.00 as agreed, and who promised to pay the taxes for the year 1912, but the defendants had made no other payments, nor did they pay the mortgage for $8,000.00 as agreed;
The declaration was filed March 22, 1915. The defendants interposed seven pleas, to which the plaintiff demurred, with the result that the court sustained the demurrer to all the pleas except the sixth. That plea averred that in March, 1913, before the mortgage for $8,000.00 became due the defendants assigned their agreement with the plaintiff to American Securities Company, a Florida corporation; that plaintiff consented to the assignment and accepted the corporation as his obligor in place of the defendants; that thereafter, in July, 1913, foreclosure proceedings were begun on the mortgage with the plaintiff and his wife as sole defendants; that the plaintiff first refused to carry out the agreement on his part, in that on February 1, 1914, before final decree in the foreclosure suit the corporation tendered to the plaintiff the $4.00.00 due on that date; that at that time the corporation was not in default under the terms of the agreement, but the plaintiff refused the tender and denied the corporation’s rights under the agreement.' This plea was held to be good, and such ruling was made the basis of the first error assigned.
The plea was bad and constituted no defense, for several reasons. That the defendants were not made defendants in the foreclosure suit constituted no defense to the plain
The plea is unsound in so far as it undertakes to set up a novation because it does not negative the idea that the corporation in its agreement with the defendants merely agreed to pay the debt due by them to the mortgagee, or merely assumed their obligation to the plaintiff to pay that mortgage, a mere promise of a third person to answer for the debt of another. Nor does the plea aver that the plaintiff in consenting to the arrangement released the defendants from their obligation to the plaintiff and discharged and cancelled the debt due by them. A necessary element in novation is that the original debt is by the agreement extinguished and the debtor absolutely released. If novation is pleaded this element must clearly and definitely appear by averment or necessary inference from the facts averred. If by the agreement the parties intended to keep alive the old debt and accept the new as a sort of security, novation is not accomplished ; and if the plea leaves this matter in doubt it is bad because of the rule which requires that such matters of doubt be resolved against the pleader. He is presumed to have put his defense In the most favorable light before the court; he has taken his own time, chosen his own words, selected his own phrases and proffered the facts which he deems to be the most favorable to himself, and if that opportunity thus offered to him to make his plea
The defendants then asked for and were granted leave to file a further and additional plea. The plea was filed and numbered 7A. The plea is as follows:
“That after the making of the contract between the plaintiff and the defendants mentioned in the plaintiff’s declaration, on to-wit, the 7th day of March, 1913, these defendants transferred and assigned all of their rights and liabilities under said contract to one American Securities Company, a corporation; that the plaintiff had notice of said assignment, and that it was thereupon orally promised, understood and agreed by and between the plaintiff and these defendants and the said American Securities Company that said company was substituted in place and instead of these defendants as the plaintiff’s*299 obligor and debtor under said contract and that the plaintiff would look to said company for payment of the moneys and performance of the obligations specified therein.'
“That thereafter said parties acted upon said oral agreement and the said American Securities Company undertook performance thereof; that said company is now and for a long time past has been insolvent; that said company made default in payment of the mortgage indebtedness due said Goldsberry whereupon foreclosure proceedings were taken by the said Goldsberry as mentioned in the plaintiff’s declaration, and that these defendants were not made parties to said foreclosure proceedings.
“That by reason of the premises the position of said parties has béen so changed that performance of said original contract by these defendants so as to obtain the benefits thereof is impossible; and said oral agreement, in equity and good conscience ought to be recognized and made effective by this’ court to' the extent of barring the_ plaintiff from enforcement of his alleged claim as against these defendants herein.”
There was a demurrer to this plea upon the grounds that it set up no defense; that it showed no facts which entitled the defendants-to equitable relief; that there was no consideration for the agreement and that the alleged oral agreement was for the conveyance of an interest in land and void under the statute of frauds. The demurrer was overruled. The plaintiff then, replied that the contract sued on was under seal; that on March 7, 1913, the American Securities Company was not legally authorized to transact business and could not on that date make a binding and legal contract because it had' not filed its articles of incorporation in the office of the Clerk
The defendants’ demurrer to this replication was sustained and the plaintiff joined issue on the plea. The plaintiff then moved to strike so much of the plea numbered 7A as averred “that the said company is now, and for a long time past has been,insolvent; that said company made default in payment of the mortgage indebtedness due said Goldsberry, whereupon foreclosure proceedings were taken by the said Goldsberry as mentioned In the plaintiff’s declaration, and that these defendants' were not made parties to said foreclosure proceedings. That by reason of the premises the position of said parties has been so changed that performance of said original contract by these defendants so as to obtain the benefits thereof is impossible, and said oral agreement, in equity and good conscience ought to be recognized and made effective by this court to the extent of barring the plaintiff from enforcement of his alleged claim as against these defendants herein,” upon the ground that the same was immaterial and irrelevant, constituted no defense and tended to prejudice the right of the plaintiff. This motion was denied. These different orders and rulings affecting the plea were made the bases of the second, third, fourth and fifth assignments of error.
The plea seems to combine the defense of novation and a defense upon equitable grounds. If the plaintiff’s claim was novated it was a good defense; whereas,if it was not the averments of the plea as to insolvency of the corporation and the defendants not being made parties to the fore
In the case at bar upon the assignment of the agreement by the defendants to the corporation the plaintiff’s right to look to the corporation for payment was complete and there was no consideration for the release of the defendants. The evidence shows that the corporation undertook to and did avail itself of the defenses afforded under the terms of the original agreement as assignee of the defendants by raising some question of title or boundaries to the lands described. Whereas a novation of the kind sought to be pleaded in this case is a contract to pay, based upon the new consideration of the release of the defendants, the terms of the old agreement, its conditions and qualifications became extinguished and the new agreement with its terms and conditions is substituted.
The assumption of the debt by the corporation resulted from the assignment to- it of the agreement. This assignment enured at once to the benefit of the plaintiff, whose assent to the transaction and agreement to look to the corporation in no way changed the relation of creditor and debtor between him and the defendants.
The demurrer to the plea should have been sustained and the court’s ruling was reversible error. The replication to this plea presented' two questions which it is unnecessary for ns to determine. One was that the agree
The judgment is reversed.