275 F. 654 | S.D. Fla. | 1921
This is a suit by the transferree of an overdue promissory note against makers. The plea, to which both a motion to strike and a demurrer have been filed, alleges, in short, facts as follows:
In August of 1919 the defendants, being owners of certain patents, entered into certain agreements with the Submarine Boat Corporation for an agreed price to give an option to it to acquire 51 per cent, of the capital stock of a corporation to be formed at the agreed price of $500,-000, and to which was to be tiansferred the exclusive license under such patents, and which was to provide for the manufacture and mar
The plea further shows that by a subsequent contract between the parties, until the exercise of the option by tlie Submarine Boat Corporation, the defendants would do certain things on their part, and the Submarine Boat Corporation during this period would manufacture within a reasonable time all such machines as might be ordered from it by the defendants for a certain agreed consideration. It is this last contract which is alleged to have been breached, and for which the damage thereby suffered is claimed, and offered to be offset.
A motion to strike said plea, as well as a demurrer to same, was duly filed by the plaintiff. Section 2660 of the Revised General Statutes is as follows:
“All debts or demands mutually existing between the parties at tlie commencement of tlie action, whether the same be liquidated or not, shall be proper subjects of set off, and may be pleaded accordingly.”
The section further requires the filing of a true copy of the subject-matter with the plea, and provides, that if the jury find a balance in favor of the defendant, that judgment may be claimed therefor.
Section 4725 provides who shall be a holder of negotiable paper in due course. Four things are necessary to constitute a holder in due course: (1) That it is complete and regular upon its face. (2) That he became the holder of it before it was overdue. (3) That he took it in good faith and for value. (4) That at tlie time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.
Section 4731 provides that a negotiable instrument in the hands of any holder, other than a holder in due course, is subject to the same defenses as if it were nounegotiable.
The demurrer admits the facts well pleaded to be true; therefore the right of the defendants to plead set-off in this suit must be tested as though the instrument sued on was nonnegotiable. The question, under tlie facts admitted by the demurrer, resolves itself into this: The plaintiff being the agent and acting for the Submarine Boat Corporation in this suit, to which the note in suit was indorsed and delivered by the makers, can the defendants interpose a plea of set-off for a Haim against said Boat Corporation?
Coming to the decisions in Florida bearing on this subject, the case of Birmingham T. & B. Co. v. Jackson County Mill Co., reported in 41 Fla. 498, 27 South. 43, Justice Mabry discusses the decisions, and while the exact point here involved was not before the court—that is, that plaintiff was the agent of the person against whom the set-off was pleaded—yet the construction of our statute of set-off seems to lead to the conclusion that the debts to be mutual must be between the parties to the record. He calls attention to the fact, in discussing the English statute, that there was no provision for a judgment in favor of the defendant for any balance which might be shown in his favor.
i In the case of Gregory v. McNealy, 12 Fla. 578, Justice Westcott uses this language:
“Proof of agency only results in permitting the defendant to avail himself of any defense against the principal which he may have.”
The demurrer to the plea will therefore be sustained.