Barcus v. Wood

• Decision Date: 20 October 1926
• Citation: 110 So. 265,92 Fla. 763
• Parties: BARCUS v. WOOD.
• Court: Florida Supreme Court

110 So. 265

92 Fla. 763

BARCUS v. WOOD.

Florida Supreme Court

October 20, 1926

En Banc.

Error to Circuit Court, Suwannee County; M. F. Horne, Judge.

Action by Harry J. Wood, against H. E. Barcus on a note, Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

Pleas of failure of consideration for instrument under seal or simple contract must unequivocally aver facts constituting such failure and set forth facts necessary to show specific nature of defense; plea of failure of consideration, averring facts constituting such failure, and apprising plaintiff of specific nature of defense, is sufficient against demurrer. All pleas attempting to set up the defense of failure of consideration, whether to an instrument under seal or a simple contract, must directly, positively, and unequivocally aver the facts which constitute such failure, and must set forth so much of the facts and circumstances connected with the transaction as may be necessary to apprise the plaintiff fully of the specific nature of the defense which he will be required to meet. A plea which conforms to such requirements is sufficient against demurrer.

In action on note, pleas of failure of consideration held sufficient on demurrer. Pleas examined and found sufficient.

Rule that plea of failure of consideration must allege defendant suffered loss thereby does not apply where sole consideration for note was promise to perform service. The rule that a plea of failure of consideration must aver that the defendant has suffered a loss by such failure is not applicable to cases where the sole consideration for the note sued on was a promise to perform a service. Until such service is performed there is no consideration and the promise is nudum pactum and a valid defense so long as the note is in the hands of the payee or one who is not a holder in due course.

COUNSEL

John F. Harrell, of Live Oak, and T. G. Futch, of Leesburg, for plaintiff in error.

Marks Marks & Holt, of Jacksonville, for defendant in error.

OPINION

KOONCE Circuit Judge.

The defendant in error, as plaintiff in court below, sued the plaintiff in error, as defendant below, in an action at law upon a promissory note. Several pleas were filed by defendant to the declaration to all of which demurrers were sustained and thereafter, by leave of the court, the defendant filed three 'further and amended pleas.' Demurrer was likewise sustained to each of these pleas and final judgment entered by the court. Writ of error is brought to this court from such final judgment and four assignments of error set forth, viz.:

(1) The court erred in sustaining demurrer to the defendant's first further and amended plea.

(2) The court erred in sustaining demurrer ot the defendant's second further and amended plea.

(3) The court erred in sustaining demurrer to the defendant's third further and amended plea.

(4) The court erred in entering final judgment against defendant.

In the briefs of the attorneys for both plaintiff in error and defendant in error, the first three assignments are presented together as one question, and will be so considered in this opinion.

The declaration is in two counts; the same written instrument, a promissory note under seal, being the basis of each count. The second count is merely a more elaborate description of the note.

The three 'further and amended pleas' are in substance the same, varying only in the phraseology, and each plea undertaking to set out the same defense of failure of consideration for the note which is the basis of the cause of action.

Without quoting these pleas in full, and stripped of all verbosity, each of the three pleas state substantially as follows: That the note sued upon was given to one Jessis Wood White, payee, who, long after the maturity of the note, assigned it to Jessie Wood, who, in turn, assigned it to Harry J. Wood, the plaintiff, below; that these assignees took the note with all its infirmities and with full knowledge of all equities and defenses existing between the maker and the payee, that the sole and only consideration for making said note was the agreement and promise, on the part of the payee therein named, to obtain and deliver to the defendant, the maker of the note, a certain outstanding note given by him to one Henry Wood, for $5,000. The plea further states that, at the time of the giving of the note sued upon, the payee therein, Jessie Wood White, was not the owner of the said Henry Wood White note; that she was not in possession of the same; and that she did not have good right, full power, and lawful authority to surrender said note payable to Henry Wood. And the pleas further allege that the payee of the note sued upon in this suit failed and refused to obtain and return the said Henry Wood note to the defendant. It also appears by said pleas that the Henry Wood mentioned in the pleas was the father of the payee of the note sued upon, as also of the plaintiff in the suit, and the husband of the said Jessie Wood, assignee of the payee.

The note which was the basis of the cause of action in this suit was an instrument under seal, and therefore imports a consideration, but this does not preclude the defendant from showing, if he can, a failure of consideration. The presence of the seal calls for a clear and satisfactory showing of such failure; indeed, the rule is well established that all pleas attempting to set up the defense of failure of consideration, whether to an instrument under seal or a simple contract, must directly, positively, and unequivocally aver the facts which constitute such failure, and must set forth so much of the facts and circumstances connected with the transaction as may be necessary to apprise the plaintiff fully of the specific nature of the defense which he will be required to meet. This rule was announced by this court as early as the case of Ahren v....