Deese v. Mobley

Decision Date16 January 1981
Docket NumberNo. PP-41,PP-41
Citation392 So.2d 364
Parties30 UCC Rep.Serv. 1314 B. W. DEESE and Gladys B. Deese, his wife, Appellants, v. Frank MOBLEY, Appellee.
CourtFlorida District Court of Appeals

Frank M. Gafford, Lake City, for appellants.

Martin S. Page, of Darby, Peele, Page & Bowdoin, Lake City, for appellee.

LARRY G. SMITH, Judge.

Appellants, Mr. and Mrs. Deese, appeal from a final judgment in their mortgage foreclosure action discharging appellee, Mr. Mobley, from any liability under the note and mortgage. The Deeses contend that the court erroneously determined that an agreement between the Deeses and Hazel Mobley, appellee's former wife and a co-maker on the note, whereby the Deeses released Mrs. Mobley from liability on the note, had the effect of also releasing Mr. Mobley. We find error and reverse.

In 1968 Mobley and his wife Hazel purchased some land from appellants, giving a promissory note and purchase money mortgage to secure the sum of $16,000.00, the balance of the purchase price after a down payment of $1,000.00. In 1973 the Mobleys were divorced and became tenants in common, each owning an undivided one-half interest in the land. A provision in the final judgment of divorce ordered Mr. Mobley to make all payments on the Deese mortgage.

Shortly after the divorce, Mrs. Mobley discussed with Mr. Deese her desire to sell her undivided one-half interest in the land. Mr. Deese, being unsure what effect his purchase of her interest would have on his security under the mortgage, suggested that his daughter purchase the property from Mrs. Mobley. Mrs. Mobley understood that she would be relieved of her liability on the note and mortgage, and that the Deeses would look solely to Mr. Mobley for satisfaction of the debt. Mr. Deese examined a copy of the divorce decree, which he interpreted as making Mr. Mobley solely responsible for the obligation under the note and mortgage. Mrs. Mobley then conveyed her interest in the property to the Deeses' daughter, in turn for which she was paid the sum of $1,000.00 from the daughter's funds. At the time of the transaction, the mortgage was in default, there being unpaid principal of $16,000.00, and unpaid interest of approximately $4,000.00. The Deeses later filed this foreclosure action against Mr. Mobley only.

The trial court ruled that since the actions of the Deeses operated as a release of Mrs. Mobley from the entire debt, this had the effect of also releasing Mr. Mobley, with whom Mrs. Mobley was jointly and severally liable on the note 1. The rule of law applied by the trial court is found in Penza v. Neckles 340 So.2d 1210 (Fla. 4th DCA 1976), approved 344 So.2d 1282 (Fla.1977), which held that the written release of one joint and several obligor on a contractual obligation discharged from liability the other joint and several obligor, even though the release expressly stated that it was not the obligee's intention to release the other joint and several obligor and reserved the right to sue the other joint and several obligor. Appellee argues in support of the trial court's decision that this rule is one of the "ordinary rules of contract law" contemplated by the "discharge" provisions of Section 673.601(2), Florida Statutes (1979), which provides in part:

673.601 Discharge of parties.

(1) Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money.

In 3, Anderson, Uniform Commercial Code, 63601: 17 "Release of joint maker," the author states (at page 103):

The general rule that the release of one co-debtor releases the other co-debtors applies to the release of one or more less than all of the obligors on the promissory note who are jointly or jointly and severally bound, by virtue of the provision that a negotiable instrument is discharged by any act which would discharge a simple contract for the payment of money. The reason often advanced in support of this rule is that since the debtors have a right of contribution among themselves, the releasing creditor ought not to be allowed to enforce his claim against one whose remedy of contribution has been destroyed by the release.

In another jurisdiction the court has determined that a negotiable instrument may be discharged by an oral release or an oral agreement entered into for valuable consideration, adopting what it presumed to be the majority resolution of the conflict among jurisdictions which have adopted the Uniform Commercial Code. Brunswick Corporation v. Briscoe, 523 S.W.2d 115 (Mo.App.1975).

Despite the foregoing, our reading of the Uniform Commercial Code dealing with negotiable instruments (Chapter 673, Florida Statutes) as applied to the facts of this case, convinces us that the discharge and release of Mrs. Mobley did not release Mr. Mobley of any and all liability, as found by the trial court, but only released him from one-half of the debt.

First, we find upon review of the testimony that the "agreement" between Mr. Deese and Mrs. Mobley does not substantiate appellee's contention that the entire debt evidenced by the promissory note was discharged. Assuming for the purposes of this decision, although it is questionable, that the "understandings" of the parties to this transaction would qualify as a "release" in the Penza v. Neckles sense 2 we find from review of the record an absence of evidence sufficient to substantiate appellee's claim that the entire debt was discharged. Mr. Deese denied that he agreed with Mrs. Mobley to forgive the debt against her. In his deposition he testified that what he told Mrs. Mobley was: "I will let you, Mrs. Mobley, sell your interest to her, Mary Ann (the Deeses' daughter), and take you off the note for one-half the mortgage and give you $1,000.00." The transaction was further explained by the question and answer given by Mr. Deese on cross-examination by appellee's counsel at the final hearing before the court:

Q. So then I would be correct in saying that your deal with Mrs. Mobley was, you would give her $1,000.00 over your daughter's name in return for which she'd give your daughter a deed to her one-half interest, and you would additionally take her off the note or forgive her of one-half of the debt that you are suing on here today; is that not correct? (emphasis supplied)

A. If I said it there, then it is right, yes, sir. I can't remember just the words.

Q. All right. And then it is your intention and has been your intention ever since then that Mrs. Mobley, once she gave a deed to your daughter and took the $1,000.00, was no longer obligated on this debt?

A. In my mind, I felt she was off of it, yes, sir.

Mr. Deese further testified that upon his examination of the divorce decree between the Mobleys, he noted and relied upon the provision which made Mr. Mobley obligated for all of the mortgage, and "it left her hand, left her half to herself."

Mrs. Mobley testified in her deposition, admitted at the final hearing, that after she conveyed her interest in the property and received the money, "I figured I was out of it and didn't have anything to do with it." She stated also that it was her understanding that Mr. Deese understood also that she would no longer be liable on the mortgage. She further stated, however, that her liability on the note in no way entered into the purchase price of her agreement to sell her one-half interest in the property, and although she thought she would "not be liable" on the note after the sale, she stated that in her conversation with Mr. Deese the note and mortgage and the matter of her payment of it were not mentioned. The following questions and answers also appear in the portions of her deposition introduced into evidence:

Question: Now, did Mr. Deese give you an agreement in writing or any other memorandum that he agreed to absolve you from any obligations on the note or anything like that?

Answer: No, sir.

Question: Well, what exactly were the terms of your agreement with Mr. Deese that you were to be released from the note and mortgage?

Answer: Well, after I sold him my interest in it I thought it would be up to him and Mr. Mobley.

Question: Well, I concur with that, but what agreement? Did Mr. Deese give you any...

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6 cases
  • Lyons v. Citizens Commercial Bank of Tallahassee, AQ-272
    • United States
    • Court of Appeal of Florida (US)
    • 14 Diciembre 1983
    ...and affirm. The defense of discharge found in section 673.606 is properly characterized as a "suretyship defense." Deese v. Mobley, 392 So.2d 364, 368 (Fla. 1st DCA 1981). See also 3 R. Anderson, Uniform Commercial Code §§ 3-606:1--3-606:12 (1971) and 2 Bender's Uniform Commercial Code Serv......
  • Bishop v. United Missouri Bank of Carthage, 12683
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Febrero 1983
    ...including comakers. See Rushton v. U.M. & M. Credit Corporation, 245 Ark. 703, 434 S.W.2d 81, 83 (1968); Deese v. Mobley, 392 So.2d 364, 368 (Fla.Dist.Ct.App.1981); Southwest Florida Production Credit Association v. Schirow, 388 So.2d 338, 339-40 (Fla.Dist.Ct.App.1980); Beneficial Finance C......
  • Bankatlantic v. Berliner, 4D04-1106.
    • United States
    • United States State Supreme Court of Florida
    • 2 Noviembre 2005
    ...action as the maker; Section 673.416(1) Florida Statutes (1987) permits the holder to sue the guarantor separately. See Deese v. Mobley, 392 So.2d 364 (Fla. 1st DCA 1981). This does not mean, however, that the holder can release one of the joint obligors and yet retain his claim against the......
  • Whitehurst v. James Noel Flying Services, 86-772
    • United States
    • Court of Appeal of Louisiana (US)
    • 26 Junio 1987
    ...who sign an instrument are presumed jointly and severally liable, unless otherwise specified. F.S.A. § 673.3-118; Deese v. Mobley, 392 So.2d 364 (Fla. 1st DCA 1981); Forbes v. National Rating Bureau, 223 So.2d 764 (Fla. 2d DCA 1969). Plaintiff contends that this rule is inapplicable to nonn......
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