45 Fla. 630 | Fla. | 1903
The defendant in error, as receiver of the Bank of' Tarpon Springs, brought suit January 13, 1899, against the plaintiff in error to recover upon three notes for $500 each, dated July 19th, 1890, payable three, six and nine months respectively after date, and a note for $86.87, dated July 19th, 1893, payable three months after date. Judgment was rendered for the plaintiff, and writ of error sued out by the defendant.
I. The declaration was upon the original notes, the first plea by defendant was of the five year statute of limitations, to which plaintiff replied promises to pay, and partial payments made within five years before the institution of suit. Under the first and eighth assignments of error the defendant contends that there was error in admitting in evidence the notes sued upon and rendering judgment therefor when the declaration fails to allege a .subsequent promise to pay said notes, which were on their face barred by the statute of limitations, and cites Tate v. Clements, 16 Fla. 339, in support of his contention that the new promise is the basis of the action and must be declared on in order that recovery be had thereon. • In that case it is stated that the new promise is the contract upon which suit is based, and the cause of action upon which plaintiff must rely for recovery; but no question was there raised as to the pleadings, a'nd the only point involved was whether the promise to pay one partner, after dissolution of the partnership would remove the bar of the statute as to the other partner. We have no criticism to make of the ruling of the court that it would not. With respect to the question of pleading, however, where a new promise is yelied upon to* remove the bar of the statute, the great weight of authority is that where such
II. Upon the trial of the case it developed that the three notes for $500 each had been made to the payee Safford as cashier of a partnership of which he was. a member, known as the Bank of Tarpon Springs, and not as cashier of the subsequently incorporated bank of that name, as receiver for which the plaintiff sues; and that the notes were afterwards transferred and delivered by. such partnership to the bank whose receiver is plaintiff herein. The plaintiff was thereupon permitted over the ■objection of defendant to amend his declaration by alleging such transfer and delivery for value. Under our very liberal practice no abuse of discretion was shown by the court in permitting such amendment. Burt v. Florida Southern Ry. Co., 43 Fla. 339, 31 South. Rep. 265.
Under the second' third, sixth and seventh assignments of error it is contended that no endorsement of the notes being alleged in the declaration, nor shown to have been
III. Under the fifth assignment of error it is urged that the court erred in permitting the ■ endorsement of the notes in question by the payee pending trial. It does not appear except from the assignment of error that the ruling complained of was made, though the fact of such endorsement being made is testified to by Safford. But assuming the fact to appear, and to be erpor, it was not prejudicial to the defendant. As we have seen, the suit was maintainable without the endorsement, and permitting it to be made affected the rights of neither party.
IV. The defendant contends under the fourth and ninth assignments of error that Chapter 4375, acts of 1895, which provides that “every acknowledgment of a promise to pay a debt barred by the statute of limitations must be in writing and signed' by the party to, be charged,” governs this case, and that the proper construction of the act is that it applies to all debts barred at the commencement of suit, whether barred when the promise was made or not. It is unnecessary for us to construe this act as it has no application to the case. All. of the promises and credits relied upon by plaintiff a» defeating the bar of the statute occurred before the act was passed. Even if the legislature had the power to destroy the obligation of an existing valid and binding verbal agreement, a statute will not be construed aa
Y. Under the tenth assignment of error, it is urged that there was error in permitting the introduction in evidence of the note for $86.87, dated July 19, 1893, as the declaration as amended alleged the note to have been transferred to the incorporated Bank of Tarpon Springs, while the evidence showed it to have been given to said bank as payee after its incorporation. We are unable from the record to tell whether the amendment alleging the transfer of the notes was inserted after the allegation in the declaration as to the $500 notes to which it was properly applicable, or after the allegation as to the $86.87 note to which it was not applicable. The presumption is that it was made at the proper place (McConnell v. Sullivan, 37 Fla. 576, 20 South. Rep. 762), and that this assignment is without merit.
VI. The eleventh and twelfth assignments of error, which are argued together, are based upon the denial of the defendant’s motions in arrest of judgment and for a new trial. The first objection urged under these assignments is to the action of the court in entering judgment for $2,975.93, when the damages claimed in the declaration were but $2,520. This was error, as the plaintiff’s recovery should be limited to the amount of his claim. Cooper v. Livingston, 19 Fla. 684; Younglove v. Knox, 44 Fla. 473, 33 South. Rep. 427. Under these assignments it is also urged that there was error in admitting in evidence and entering judgment upon one of the alleged $500 notes which was as follows:
Six months after date I promise to pay to the order of Leandro T. Safford ............ Dollars at the bank,” etc. While the rule may be different in a case where there is no blank left in the note and the figures on-its margin constitute the only insertion of the amount for which the note is given, made or intended to be made therein (Hubert v. Grady, 59 Texas, 502; Strickland v. Holbrooke, 75 Cal. 268, 17 Pac. Rep. 204), the weight of authority is that- where- it was obviously the purpose of the parties that the body of the note should contain the complete promise of payment, the marginal figures will be regarded as merely a memorandum for convenience, of reference, and ' no part of the note itself; and while 'the amount to be paid remains unstated, the writing does not constitute a note and can not be recovered upon as such. Norwich Bank v. Hyde, 13 Conn. 279; Garrard v. Lewis, L. R. 10 Q. B. Div. 30; Hollen v. Davis, 59 Iowa, 444, 13 N. W. Rep. 413; Smith v. Smith, 1 R. I. 398; 1 Daniel on Neg. Inst. sec. 86a. The payee might have been authorized to fill in the blank space before the word “dollars” with the agreed number. See authorities supra. But this was not done, and no recovery can be had upon writing as a promissory note, in its .present form. ■
The onlyquestion which is necessary to consider in determining whether in other respects the finding of the court is supported by the evidence, is that of payments or authorized ci’edits upon the notes to remove the bar of the statute of limitations. There is evidence to the effect that within five years before the commencement of suit, indebtedness of Safford, the Cashier of the Bank of Tarpon Springs, to Vinson, the defendant, and his broth;
For the error in entering judgment upon the alleged note in which the amount to be paid was not inserted the judgment should be reversed and new trial granted, unless the plaintiff shall within thirty days from the filing of the mandate of this court in the court below enter a remittitur as a of the date of such judgment for the sum of $778.52, that being the amount of said blank note including interest. Such entry will also cure the error in entering judgment for a greater amount than that claimed in the declaration, and if such remittitur be made the judgment should be affirmed.
This cause being reached in its regular order for final disposition, was heretofore referred by. the court to its commissioners for investigation, who reported the same recommending conditional affirmance for the reasons stated in the foregoing opinion prepared by former Commissioner Maxwell. After due considerhtion of the case by Division A of the court, the said foregoing opinion is hereby adopted and ordered to be filed as the opinion of the court in said cause, and it is hereby ordered, adjudged and decreed that if the defendant in error shall, within thirty days after the mandate of this court shall be sent to
