Antonacci v. Denner, 62-206

• Decision Date: 29 January 1963
• Docket Number: No. 62-206,62-206
• Citation: 149 So.2d 52
• Parties: Paul ANTONCCI, Appellant, v. Clara B. DENNER, Executrix of the Estate of David S. Denner, the Florida State Turnpike Authority, a body corporate and politic, created and existing under and by virtue of Chapter 28128, Laws of Florida, Acts of 1953, the First National Bank of Miami, a banking corporation organized and doing business in the State of Florida, Trustee for the Florida State Turnpike Authority, and Peerless Insurance Company, a New Hampshire corporation authorized to do business in the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 52

149 So.2d 52

Paul ANTONCCI, Appellant, v. Clara B. DENNER, Executrix of the Estate of David S. Denner, the Florida State Turnpike Authority, a body corporate and politic, created and existing under and by virtue of Chapter 28128, Laws of Florida, Acts of 1953, the First National Bank of Miami, a banking corporation organized and doing business in the State of Florida, Trustee for the Florida State Turnpike Authority, and Peerless Insurance Company, a New Hampshire corporation authorized to do business in the State of Florida, Appellees.

No. 62-206.

District Court of Appeal of Florida, Third District.

Jan. 29, 1963.

Rehearing Denied Feb. 14, 1963.

Harry Housen, Miami, for appellant.

Patton & Kanner, Fowler, White, Gillen, Humkey & Trenam and Henry Burnett, Miami, for appellees.

Before HORTON, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

This is an appeal by the plaintiff from a final decree, subsequently amended, holding that the plaintiff was not a holder in due course of certain Florida State Turnpike Revenue Bonds or, in the alternative, that the bonds were not negotiable.

The subject matter of this suit is ten Florida State Turnpike Authority Revenue Bonds, Series 1955, numbered 41126 through 41135, inclusive, with a face value of $1,000.00 each. It was conclusively shown that these bearer bonds were stolen from their original owner, David S. Denner, now deceased, on or about March 11, 1956, when his home was burglarized.

The plaintiff, who subsequently acquired these bonds, filed a 'Second Amended Complaint for Declaratory Decree' in which he alleged that he purchased these bearer bonds before maturity, for value, in good faith, and without notice of infirmity or defect in the title of the person negotiating them. The plaintiff sought to be decleared a holder in due course of these 'negotiable' bonds and further sought to have his bonds validated or to receive their face value.

The defendants alleged, in part, that the plaintiff purchased these bonds under such circumstances as to evidence bad faith, thus precluding him from being a holder in due course and subjecting him to the personal defense of theft.

The trial judge, in commendable detail and thoroughness, entered his findings of fact and conclusions of law in which he found that the plaintiff, because of the circumstances surrounding his acquiring possession of the bonds, did not occupy the position of a holder in due course as defined by § 674.54, Fla.Stat., F.S.A., or in the alternative, that the bonds were not negotiable.

We hold that the bonds in question met all of the requirements of negotiability and were negotiable. Thus, we now turn to the question of whether the plaintiff was a holder in due course ¹ and if not, was the defense of theft available so as to preclude him from recovering the bonds or their value.

It should be noted that if the plaintiff was a holder in due course, the fact that the bonds were stolen and negotiated by a thief would be no defense against plaintiff's rights, even as against the real owner. This position has overwhelming support.

Section 674.61, Fla.Stat., F.S.A., states:

'Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.'

The language of § 674.61, Fla.Stat., F.S.A., was broadly interpreted by the case of Sample v. Wilson, 101 Fla. 818, 134 So. 549, 139 So. 144, which held as follows:

' Ordinarily the presumption is that Wilson acquired the note in good faith, and, that being true, he was a holder in due course. This presumption, however, may be impeached, and when it is, and evidence is offered to prove that the note was not acquired in good faith, the burden is then shifted to the holder to prove that he took it free from defect or infirmity. He must show that he came in possession of the note fairly, without any knowledge of fraud or illegality and unattended with any circumstances justly calculated to awaken suspicion.'

The above decision states that when evidence is offered of the bad faith acquisition by a holder, the burden is shifted back to such holder to prove that he is a holder in due course. It should be noted that under § 674.61, the burden would also be shifted back to the holder when it is shown that the title of any person who negotiated the instrument was defective. Under § 674.57, Fla.Stat., F.S.A., there can be no doubt that the thief's title was defective and therefore, the evidence offered as to this theft would, in and of itself, operate to shift the burden to plaintiff to prove that he was a holder in due course. ²

Thus, under the facts before us, the plaintiff had the burden of proving that he was a holder in due course on the basis of both the evidence as to his bad faith acquisition and the evidence of the prior theft. We next proceed to the question of whether or not this burden was met under the facts presented.

The significant facts as found in the record can be summarized as follows: (1) plaintiff acquired these bonds from an absolute stranger whose name he could not recall; (2) plaintiff never asked the stranger his address or from what source he acquired the bonds; (3) plaintiff was in the used car business and had never dealt in bonds before; (4) the stranger entrusted one $1,000.00 bond, a 'bearer' instrument freely negotiable, with plaintiff while plaintiff took...