Coker v. Phillips

• Decision Date: 25 March 1925
• Citation: 89 Fla. 283,103 So. 612
• Parties: COKER v. PHILLIPS et al.
• Court: Florida Supreme Court

103 So. 612

89 Fla. 283

COKER v. PHILLIPS et al.

Florida Supreme Court

March 25, 1925

En Banc.

Error to Circuit Court, Hardee County; W. S. Bullock, Judge.

Action by T. E. Phillips and another, doing business as Royal &amp Phillips against J. Coker and another. Judgment for plaintiffs against defendant Coker, and he brings error.

Reversed.

(Syllabus by the Court.)

COUNSEL

W. W. Whitehurst, of Wauchula, for plaintiff in error.

Leitner & Leitner, of Arcadia, for defendants in error.

OPINION

ELLIS J.

The plaintiffs in the court below were Royal & Phillips; they brought an action against J. Coker and J. E. Glover.

The declaration contains one count divided into five paragraphs. It alleges that on January 14, 1914, the defendants, being indebted to the plaintiffs in the sum of $926.80, executed to the plaintiffs two promissory notes, each in the sum of $463.40, one payable four months and the other eight months after date, with interest at 8 per centum per annum from date; and that on January 20, 1916, the defendants were also indebted to the plaintiffs in the sum of $333.47 on an account then stated between them, and that on the 10th day of July, 1919, the defendant, J. Coker, paid to the plaintiffs the sum of $700, 'the same to be credited upon the said notes and accounts, and that this is the only amount that has been paid upon the said notes and account.' Wherefore (the declaration alleges) 'a cause of action has accrued to the plaintiffs to demand of and from the defendants the amount of the said notes, with interest and a reasonable attorney's fee, and also the amount of the said open account, together with interest thereon at the rate of 8 per cent. per annum from the date of the account, less the said credit of 700 made on the 23d day of July, 1919, to the damage of the plaintiffs in the sum of $3,000, and therefore they bring this suit.' Copies of the notes and account were attached to the declaration and marked Exhibits A, B and C respectively. The declaration alleged that the notes provided for the payment of attorney's fees.

It seems to be necessary to make a reasonably full statement of the pleadings in this case in order that it may be seen how the questions sought to be presented were raised.

It will be observed that the declaration conforms to no rules or form known to the law of pleading. It contains references to three distinct, separate, and independent causes of action, each of which was properly the subject of a separate and independent count. But the plaintiffs treated the total indebtedness and the failure to pay it as one cause of action, and seemingly declared upon an obligation founded partly upon two instruments in writing and partly upon an obligation not founded upon an instrument in writing. The declaration was duplicitous because three distinct matters were alleged in aid of a single demand, and any one of such matters would uphold the demand as a cause of action.

The defect is one of form rather than one of substance apparently; yet it involves difficulties. The plea of never was indebted would not be applicable under our rules, because the action does not rest entirely upon an implied assumpsit, nor would the plea of never promised as alleged apply, because the action is not wholly upon an express promise, nor would the pleas applicable to demands upon promissory notes be applicable, because the action is not wholly upon the notes.

A discussion of the practice which ignores the rules of pleading would avail nothing; our task is to try and, if possible, work out of this tangle, into which a very simple case has been twisted, the issues upon which it was supposed to have been tried. At best it can be little more than a guess.

In this state an action upon any contract, obligation, or liability founded upon an instrument of writing not under seal may be commenced only within five years, and within three years upon an obligation not founded upon an instrument in writing, including an action for goods and merchandise sold and delivered on store accounts. See section 2939, Revised General Statutes 1920.

Ignoring for the moment the allegation of the payment by the defendant, Coker, alleged in one part of the declaration to have been made July 10, 1919, and in another part to have been made on the 23d day of that month, it appears that when the action was brought the notes had been barred two years and the account three years. But when the payment was made the first note, Exhibit B, due May 14, 1914, had been barred one month, while the second note, due September 14, 1914, was not barred, and the open account had been barred five months.

The action was brought February 4, 1922. The promissory notes were joint and several obligations.

In May, 1922, the defendant, Coker, pleaded the statute of limitations to both notes and open account; then, five months afterward, 'filed his amended plea.' That plea consisted of four divisions, as follows: The statute of limitations as to the first note, Exhibit B; second, the statute of limitations as to the open account; third, never was indebted as to the open account; and fourth, payment as to the second note, Exhibit A.

The parties seem to have treated the first plea, which was in discharge to the entire obligation, as abandoned by the 'amended plea.'

The plaintiffs replied to the first and second pleas, or divisions of the amended plea, that the defendant, Coker, 'acknowledged said indebtedness in writing.' There was an allegation that such acknowledgment renewed the note and 'took it out of the statute of limitation,' also took the action on the account 'out of the statute of limitation,' but such allegation was a conclusion of law. The plaintiffs joined issue on the third and fourth pleas or divisions of the plea.

Thereupon, in October, the defendant, Coker, demurred to the replication to the 'first and second pleas.' The first, second, and third grounds of the demurrer were that the alleged payment was insufficient to remove the bar of the statute of limitations as the payment was made after the statute had run. The fourth and fifth grounds were the same, but applied to the account.

The court overruled the demurrer. The order was made October 7, 1922.

Now, upon the day before the order on the demurrer was made, and upon the same day the first demurrer was interposed, the defendant, Coker, demurred to the replication as amended. The amendment seems to have been in the following words:

'And acknowledged said indebtedness in writing duly signed by the defendant, J. Coker.'

In the order overruling the demurrer, referred to above, the court referred to the amendment in the following words:

'Upon argument of this demurrer the plaintiff asked leave to amend his replication in order to show that the new promise to pay, renewing the action, was in writing. The same is allowed, and is interlined in original replication.'

But the record shows no such amendment as the court referred to; it merely alleged an acknowledgment of the debt in writing.

The second demurrer referred to urged three grounds of objection to the replication. In the first of these grounds the pleader included the note marked Exhibit A, which was not referred to either in the plea or replication, a payment upon which was made before the statute barred the note. Nevertheless it was urged in this ground that the declaration was 'based upon a cause of action barred by the statute of limitation, and the said replication attempts to set up a promise in writing by the defendants to pay the case of action, copies of which are attached to the declaration as Exhibits A and B; whereas the declaration herein declares upon the original indebtedness and not upon the new promise.' The second ground informs us that the declaration is upon 'a promissory note and upon an account stated,' but 'the said replication attempts to set up a promise to pay the same made by the said defendants after the said cause of action became barred, but the said promise is not alleged or set forth in the said declaration.' The third paragraph more concisely and clearly urges the same ground as to the entire declaration; the point sought to be presented probably being that the plaintiffs were guilty of a departure in pleading, because, having declared upon the original obligation represented by the promissory notes and open account, they could not shift their ground to a new promise based upon a recognition of the old debt in writing.

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