Carlton v. Phelan

• Citation: 131 So. 117,100 Fla. 1164
• Parties: CARLTON v. PHELAN.
• Decision Date: 07 November 1930
• Court: Florida Supreme Court

131 So. 117

100 Fla. 1164

CARLTON v. PHELAN.

Florida Supreme Court

November 7, 1930

Commissioners' Decision.

Error to Circuit Court, Dade County; A. J. Rose, Judge.

Action by Elmer H. Carlton against Mrs. Francis M. Phelan, Sr., also known as Mrs. K. Phelan. To review an adverse judgment plaintiff brings error.

Reversed and remanded.

COUNSEL

Price, Price, Kehoe & Kassewitz and Ben S. Hancock Jr., all of Miami, for plaintiff in error.

Boone &amp Kirchik, of Miami, for defendant in error.

OPINION

DAVIS C.

In this case the plaintiff instituted an action at law against 'Mrs. Francis M. Phelan, Sr., also known as Mrs. K. Phelan, as also Mrs. Katherine E. Phelan,' and the declaration shows that the Phelan Lumber Company was indebted to the plaintiff in a certain sum of money represented by certain promissory notes which are therein described and copies of which are attached to and made a part thereof; that certain of said notes were past due and the said Phelan Lumber Company, being desirous of securing their payment, procured from the defendant for a valuable consideration for the use of the plaintiff a certain guaranty in writing executed by her and binding herself, her heirs, executors, and administrators, 'to the payment of said notes, in the event of the failure of the maker or endorsers thereof to make payment within thirty days after the maturity' (a copy of the said guaranty being attached thereto and made a part thereof; that the makers and indorsers have each failed and refused to pay said notes or either of them; and that demand has been made upon the guarantor to make good her guaranty which she failed and refused and continues to fail and refuse to do.

The defendant, who is the defendant in error here, demurred to the declaration upon the following grounds:

'1. That it affirmatively appears from the declaration that the defendant is a married woman and there is no showing that she has ever been made a Free Dealer in Florida.

'2. There is no showing in the declaration that the notes have been protested as against the maker and endorsers for failure to pay in order to justify an action against the defendant as guarantor.

'3. Because said declaration is vague, indefinite and uncertain in this that it does not allege when and where a demand was made upon the defendant and whether before or after maturity of the obligations upon which the contract of guarantee is sought to be enforced.

'4. That a married woman in the State of Florida cannot have enforced against her a contract of guarantee such as sued on herein.

'5. Because the declaration does not affirmatively show that the plaintiff has done all that is required of him before bringing action to recover on a guarantee.

'6. Because it affirmatively appears from the guarantee sued on that an action cannot be maintained against the guarantor, the defendant herein, until thirty (30) days after presentation and maturity of the notes.

'7. Because said alleged contract of guarantee does not set our the particular notes described in the declaration as being the obligations for which the guarantor would be liable.

'8. Because said Exhibit 'J,' which is the contract of guarantee set up, is vague, indefinite and uncertain in this that it does not allege the dates nor the amounts of the notes nor the maturity thereof.

'9. Because said Exhibit 'J' is not an enforcible contract at law as against this defendant.'

The demurrer was sworn to and subscribed by Katherine E. Phelan.

The court sustained the demurrer in an order which recited the following:

'And the court being of the opinion that the said declaration cannot be amended so as to state a cause of action against the said defendant,

'It is further ordered that said suit be dismissed and that the said defendant go hence without, day and recover her costs to be taxed by the clerk of this court.'

The cause is before us upon writ of error to that final judgment.

The only questions argued here that were raised by the demurrer relate to the sufficiency or insufficiency of the declaration to obtain a personal judgment against the defendant Mrs. Francis M. Phelan, Sr., it being the contention of the defendant in error that it is affirmatively shown by the declaration that said defendant is a married woman; that the declaration further affirmatively shows that the contract of guaranty relates to the promissory notes executed and delivered and payable in Florida; and that to enforce payment of said notes against a married woman in an action at law would be against the public policy of this state.

It is therefore apparent that the first question for us to determine is: Does it appear from the declaration that the said defendant is a married woman?

The conclusion that she is a married woman was evidently arrived at by the defendant in error by reason of the fact that the alleged contract of guaranty which was made a part of the declaration is signed 'Katherine E. Phelan,' and she is sued as 'Mrs. Francis M. Phelan, Sr.'

The prefix 'Mrs.' shows undoubtedly that at some time the defendant had been married to one Francis M. Phelan, Sr. Such prefix is not a name, but a mere title that usually distinguishes the person referred to as a married woman. However, it is not used exclusively by married women. Uihlein v. Gladieux, 74 Ohio St. 232, 78 N.E. 363; State v. Richards, 42 N. J. Law, 69; State v. Kutter, 59 Ind. 572; Brown v. Reinke, 159 Minn. 458, 199 N.W. 235, 35 A. L. R. 413; D'Autremont v. Anderson Iron Co., 104 Minn. 165, 116 N.W. 357, 17 L. R. A. (N. S.) 236, 124 Am. St. Rep. 615, 15 Ann. Cas. 114; Feld v. Loftis, 240 Ill. 105, 88 N.E. 281. It is also used, and properly so, by widows and divorcees who make 'too large a number to warrant us in holding that the title of 'Mrs.," placed before the name of 'Francis M. Phelan, Sr.,' raises a presumption in law that the defendant is a married woman. Ballard v. St. Albans Adv. Co., 52 Vt. 325; Houston Oil Co. of Texas v. Griggs (Tex. Civ. App.) 181 S.W. 833. It is more logical to hold, as did the Supreme Court of Georgia, that, 'The prefix 'Mrs.,' appearing in connection with the plaintiff's [in that case] name, is ambiguous.' Wrightsville & T. R. Co. v. Vaughan, 9 Ga. App. 371, 71 S.E. 691, 693.

At common law, ambiguity, indefiniteness, and uncertainty, being defects in form in a...