Boymer v. Birmelin

• Decision Date: 21 October 1969
• Docket Number: No. 68--913,68--913
• Citation: 227 So.2d 358
• Parties: Ray BOYMER and Mary Boymer, husband and wife, Appellants, v. Robert C. BIRMELIN, Appellee.
• Court: Florida District Court of Appeals

Page 358

227 So.2d 358

Ray BOYMER and Mary Boymer, husband and wife, Appellants, v. Robert C. BIRMELIN, Appellee.

No. 68--913.

District Court of Appeal of Florida, Third District.

Oct. 21, 1969.

Rehearing Denied Nov. 7, 1969.

Hendricks & Hendricks, Miami, for appellants.

Goodman & Peterson, Horton & Schwartz, Miami, for appellee.

Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.

CHARLES CARROLL, Judge.

This is an appeal by the plaintiffs below from an adverse judgment, entered following trial without a jury, in an action on a promissory note.

The defendant did not dispute the making and delivery, or the maturity and nonpayment of the note, but pleaded want of consideration. The appellants seek reversal on the ground that the judgment is contrary to the evidence, in that the defendant failed to establish his affirmative defense by a preponderance of the evidence on that issue. We find merit in that contention, and reverse.

The defendant was called as an adverse witness by the plaintiffs, and his testimony disclosed the following facts. The defendant Birmelin was and is a practicing lawyer in Dade County, and at the times involved the plaintiffs were his clients. Prior to his admission to the bar the defendant had been employed on the plaintiffs' charter boat named Playtime. After his admission to practice, the defendant acted as attorney for plaintiffs in several transactions, including preparation of their wills. In October of 1958 the defendant represented the plaintiffs in the sale of their boat, and submitted a statement entitled 'Sale of Playtime, investment plan.' That showed the proceeds of the sale were approximately $21,000; that $5,935 thereof had been paid over to Boymer; and that the balance of the proceeds, $15,110, had been invested by the defendant for the plaintiffs. As listed in that report, the investments made for plaintiffs were loans of $11,000 to Central Insurance Agency, Inc., and $1,000 to Shale Development Corp., investment of $1,100 in a second mortgage and an item designated as a business loan to Gourmet Mart. Prior to the time those investments were made the defendant had been attorney for Central Insurance Agency, Inc., and at the time of the investments was attorney for one Shale, who was a principal officer in the two corporations.

The loan of $11,000 to Central Insurance Agency, Inc., was evidenced by two notes, one for $10,000 and one for $1,000. The former note is shown in the record. The latter, of $1,000, was not produced. The $10,000 note, dated December 10, 1958, was made payable to the defendant Robert C. Bermelin, as trustee. It provided for interest at the rate of 15% Per annum, payable monthly, and, as to the payment of principal, stated: 'Payment will be made by the corporation within six months upon demand.' Also typed on the note was the following: 'This Note is secured by assets of like value held by the corporation.' However, the note was unsecured, and a then current tax return of the corporation listed the corporation's assets as $1,116,791 and its liabilities as $968,607.43, with a loss of $24,310.96 shown for the year to which it related.

The monthly interest payments on the Central Insurance loan appear to have been made until some time in the fall of 1961. On September 21, 1961, the plaintiff Ray Boymer sent a letter to the defendant which included the following:

'My final point in closing, is to remind you of my letter dated January of this year, in which I indicated a desire to convert my funds in Central Insurance Agency and Shale Development Corp., (held in your Trust Acc't) to cash. At that time, I am sure conditions were more favorable than now, as you mentioned in the aforesaid discussion. At any rate, according to the noted copies of this (these) Corp., it is payable 6 months on demand of the Corps. For this reason, I had hoped to, and was assured by you, that I would receive the 'hard earned' savings involved, certainly by July of this year.

'Owing to the fact that I have barely earned expenses in yacht management, (with some accounts receivable), I have tried this year to do better in Brokerage of yachts. This has proved disasterous due to timing and the market. For this reason, even tho' we have been most careful with our personal finances, we have depreciated our invested capital with you, by some $5,000, and have even been forced to use monies in emergency savings.

'As your trustee, I am asking you to use whatever legal process you deem necessary to force payment from the assets of the Corp. involved. Due to dire financial circumstances, and in due regard for the necessities of the family, I deem this step necessary, and feel confident that you will do all in your power to protect our interests.'

The defendant testified that in the making and handing of these investments for the plaintiff he undertook to act as their 'trustee' and to service the loans for them. As indicated by the above quoted portion of the September 1961 letter, Boymer had instructed the defendant in January of that year to proceed to collect the principal of the $10,000 note of Central Insurance Agency, Inc. (and another note), and, being aware of the provision for payment within six months after demand, had expected payment to be made around July of 1961. Boymer testified that when he requested that the loan be paid, Birmelin told him it would be paid in six months. It appears that the separate $1,000 loan to the Shale corporation was repaid, but that no formal demand was made by the defendant on behalf of the plaintiffs on Central Insurance Agency, Inc. for payment of the $11,000 loan, no payment on the principal was made in July of 1961, or thereafter, and no proceedings were instituted against the corporation for the collection thereof.

Later in 1961 the plaintiff Boymer consulted another lawyer regarding the matter. The latter had a telephone conversation with the defendant, as to which defendant testified as follows:

'I told him that the condition of the company was, financially, not good, as far as I could see and that certainly that they had the right to file suit on the note.'

Thereafter Boymer called upon the defendant at his office, and the $10,000 note given by defendant to Boymer and his wife was an outgrowth of that meeting. Boymer testified with reference thereto as follows:

'Q Now, tell the Court just the facts and circumstances surrounding the execution and delivery of this note to you and Mrs. Boymer which is dated February 27, 1962, and is admitted as Plaintiffs' Exhibit 1.

'A Well, by now I realize this money wasn't forthcoming, and I wanted to find out why, so I came down to Mr. Birmelin's office on or about that time.

'Q Was your wife with you?

'A No, I came down alone. I didn't want her to be aware, actually, that we were in financial stress, which we were.

'I came to Birmelin's office to find out what he was going to do about it, because we hand't heard or received any moneys.

'Mr. Birmelin told me then that this company was in fact in trouble and up to that time, actually, I had never really understood what the nature of the business of the company was, but from whatever he said at the time, I felt that it was not a--this is another reason why I wanted to get the records on the company or something--and the reason I wanted them is so that I could go before somebody and get some advice.

'I left his office feeling just a...