Duggan v. Tomlinson, F-284

• Decision Date: 09 July 1964
• Docket Number: No. F-284,F-284
• Citation: 167 So.2d 2
• Parties: William E. DUGGAN, Appellant, v. E. D. TOMLINSON, Appellee.
• Court: Florida District Court of Appeals

Page 2

167 So.2d 2

William E. DUGGAN, Appellant, v. E. D. TOMLINSON, Appellee.

No. F-284.

District Court of Appeal of Florida, First District.

July 9, 1964.

Rehearing Denied Sept. 14, 1964.

Barrow & Moore, Crestview, for appellant.

Jones & Foerster, Jacksonville, for appellee.

WIGGINTON, Judge.

The sole question presented by this interlocutory appeal is whether Duval County, where plaintiff resides, is the proper venue of this suit in general assumpsit on an implied contract for the reasonable value of plaintiff's services rendered defendant at the latter's request and from which he benefited, even though defendant resides in Okaloosa County.

The controlling statute on venue provides that suit shall be begun only in the county where the defendant resides, or where the cause of action accrued, or where the property in litigation is located. ¹ If venue in this case is sustainable in the county of plaintiff's residence, it must be because as a matter of law the cause of action sued upon accrued there.

In the landmark case of Croker v. Powell, ² the cause of action sued upon had its genesis in an express contract for the rendition of legal services. The defendant committed an anticipatory breach of the contract prior to its execution by plaintiff as a result of which plaintiff rescinded the contract and sued in assumpsit on an implied contract seeking judgment for the reasonable value of the services which he had rendered at defendant's request and from which she benefited. In that case it was held that the proper venue of the action was Duval County where the plaintiff resided and the cause of action accrued, and not Palm Beach County which was the defendant's place of residence. In so holding the Supreme Court of Florida said:

'Where a contract involving the payment of money is made in one county and payments under the contract are to be made in another county, an action for a breach of the promise to pay may be maintained in the county where the payment was agreed to be made, for there the breach occurred and the cause of action accrued; and if no place of payment is expressly agreed on, it may be implied that payment is to be made where the payee resides or has an established place of business, and where payment under the contract may be made. Where there is an express promise to pay, and no place of payment is stipulated, the debtor should seek the creditor unless otherwise provided or agreed. In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant's breach. See Littell v. Nichols' Adm'rs, Hardin (Ky.) 66; 40 Cyc. 83; Indian Lumber Co. v. Roux, 106 Fla. 77, 143 So. 142.'

The foregoing rule was subsequently adhered to by the Supreme Court in the Producers Supply, Inc. case. ³ That action was commenced in the county where plaintiff resided. The suit was one in general assumpsit on the common counts for money owed plaintiff by defendant. The defendant questioned venue on the ground that it was a resident of a coutny other than the one in which the suit was instituted, and under the statute had a right to be sued in the county of its residence. In holding that venue was properly laid in the county of plaintiff's residence the court said:

'It is settled law in this state that the parties to an agreement may provide therein where suit may be brought to enforce it if such should become necessary, but in the absence of such a specification, a cause of action accrues where the breach of contract accrues or where the payee resides and a suit based on failure to pay may be brought where such failure accrues. Baruch v. W. B. Haggerty, Inc., 137 Fla. 799. 188 So. 797; Croker v. Powell, 115 Fla. 733, 156 So. 146; Indian Lumber Company v. Roux, 106 Fla. 77, 143 So. 142.'

The M. A. Kite Company case ⁴ decided by this Court was suit for the recovery of money owed plaintiff by defendant. The first count of the complaint alleged a cause of action based upon an express contract in which the place of payment of the sums due plaintiff under the contract was not provided. The second count alleged a cause of action in general assumpsit on the common counts for money owed plaintiff by defendant. In that decision Judge Carroll, in a special concurring opinion, pointed out that since the second count of the complaint alleged a cause of action in general assumpsit, the county in which plaintiff resided was a proper venue for the action even though defendant's resident agent resided in another county of the state.

The foregoing rule announced by Judge Carroll in his special concurring opinion in the Kite case was subsequently followed by this Court in the later case of Edgewater Drugs, Inc. v. Jax Drugs, Inc. ⁵ In this case plaintiff, a resident of Duval County, instituted a suit in that county in general assumpsit on the common counts for goods sold and delivered and for accounts stated. Defendant, a resident of Volusia County, moved to dismiss the cause on the ground of improper venue contending that under the statute it was privileged to be sued in the county of its residence which was Volusia. In affirming the trial court's order denying the motion to dismiss the action on the ground of improper venue this Court, in an opinion written by Judge Carroll, quoted from this Court's decision in the Kite case and held that in a suit in general assumpsit it may be implied that payment is to be made where the payee resides or has an established place of business as that is where the cause of action accrued.

In consideration of the foregoing authorities, we conclude that the question presented by this appeal must be answered in the affirmative, and the trial court's order finding that the venue of this action is properly laid in Duval County is affirmed.

Affirmed.

CARROLL, DONALD K., Acting C. J., concurs.

RAWLS, J., dissents.

RAWLS, Judge (dissenting).

The complaint in this cause sounds in general assumpsit, thus the law implies a contract by reason of plaintiff's allegations. Having implied a contract in favor of plaintiff, the majority then proceeds to imply venue upon the theory of the 'debtor must seek the creditor.' Or, stated another way, venue has been assigned by an implication based upon an implication.

The argument is made: This is not a suit on the contract. If it were a suit for breach of contract the venue would lie at the place the contract was consummated. ¹ However, since this is a suit in general assumpsit for the payment of money, it matters not where the contract was consummated, the cause of action being founded not upon the breach, but for failure to pay money.

Such a premise makes a nice logical argument which, in my opinion, reaches an illogical result. Where suits may be begun has been the object of considerable litigation in this State. The initial and subsequent decisions, rendered upon specific facts and observations including some obiter dictum which has been seized upon and cited as the law of the case, have in my opinion resulted in an 'Alice in Wonderland answer' in the case of contracts.

Our Supreme Court in the landmark case of Croker v. Powell ² relied to a great extent upon the following statement made by the Supreme Court of Kentucky in Littell v. Nichols's Adm'rs: ³

'It is too well settled to be now questioned, that it is the duty of the debtor who owes money to seek his creditor wherever he may be in the Kingdom, in Britain, (say in the state, with us) and pay the debt; and if the law has made the debt assignable, as it is in the present case; as soon as the debt is assigned, and notice given to the debtor, the assignee, instead of the obligee, becomes the creditor, and is clothed with all his right.'

It is significant that the Littell case concerned a suit upon a promissory note and reached the above conclusion after first declaring that venue lies where the breach of contract takes place and that the breach of contract takes place where the contract should have been performed. Also, the following significant observation is found in the Littell case, viz.:

'The British doctrine of venue is not analogous to the case in question; because the statute of Richard II, on which it is founded, directed that all actions arising on contract, should be brought where in the county the contract was made.'

Insofar as I have been able to ascertain, the cited statute of Richard II is a part of the common law of this State even though it was not considered a part of the law of the Commonwealth of Kentucky when the Littell decision was written.

The majority relies heavily upon the doctrines expressed in Croker v. Powell, supra. There, an attorney who resided in Duval County entered into an express agreement with a resident of Palm Beach County for the furnishing of professional services. Mr. Justice Whitfield speaking for the Supreme Court volunteered several principles of law which amounted to obiter dictum in view of the facts recited. The law of the case as I interpret same is summed upon the following statements:

'* * * Where there is an express promise to pay, and no place of payment is sipulated, the debtor should seek the creditor unless otherwise provided or agreed. In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant's breach. See Littell v. Nichols' Adm'rs, Hardin (ky.) 66; 40 Cyc. 83; Indian Lumber Co. v. Roux, 106 Fla. 77, 143 So. 142.' [Emphasis supplied.]

So, the law of the Croker case was limited to the facts contained therein, the salient one being the...