Fegley v. Jennings

• Decision Date: 14 May 1902
• Citation: 44 Fla. 203,32 So. 873
• Parties: FEGLEY v. JENNINGS.
• Court: Florida Supreme Court

32 So. 873

44 Fla. 203

FEGLEY v. JENNINGS.

Florida Supreme Court

May 14, 1902

Error to circuit court, Hernando county; William A. Hocker, Judge.

Action by William Fegley against W. S. Jennings. Judgment for defendant, and plaintiff brings error. Reversed.

The plaintiff in error brought suit against the defendant in error in the circuit court of Hernando county. The declaration alleged that on January 24, 1893, J. B. Fellhemer and R. S. Clark, 'by their joint and several promissory note, now overdue, promised to pay to defendant or order, on or before three years after date, the sum of four hundred and fifty dollars, at the Brooksville State Bank of Brooksville Florida, with interest at ten per cent. per annum from date until paid, * * * and the defendant, for value, received transferred, and set over the same to the plaintiff, and guarantied its prompt payment at maturity; and the said note was duly presented for payment at the Brooksville State Bank aforesaid, and was dishonored, whereof the defendant had due notice, but did not pay the same, or any part thereof although often requested by the said plaintiff so to do,' etc.

A demurrer to the declaration was filed and overruled. Certain pleas were filed, and a demurrer thereto sustained, and afterwards defendant filed an amended plea, alleging, in substance: That on the date of the note sued on the makers thereof, to secure its payment, executed a mortgage on certain lands in Hernando county, which contained a valuable orange grove. That said note and mortgage, on or about April 14, 1893, were transferred by defendant to plaintiff; that said mortgage contains the following stipulations, viz 'Said parties of the first part hereby agree to work and cultivate said orange grove in a good and workmanlike manner, to keep the same in good repair, and upon their failure so to do said parties of the second part shall be entitled to, and shall have peaceable and immediate possession of, said property, and said notes and mortgage shall then and there become due and payable.' That said makers and mortgagors failed during the month of July, 1893, and ever afterwards failed and refused to work and cultivate said orange grove in a good and workmanlike manner, and to keep the same in good repair; and that by reason of such default and failure the said note became then and there due and payable, and defendant immediately thereafter requested plaintiff to foreclose said mortgage, at which time the same was full and ample security for the note sued on, yet plaintiff failed and neglected to foreclose said mortgage, and the said orange grove and premises since, viz., during the month of February, 1895, have, by reason of a freeze, become practically worthless, and the makers of said note insolvent, and plaintiff, by his fault in failing and neglecting to foreclose said mortgage when it became due, lost said security, and defendant all means of obtaining repayment of the sum sued for from said makers.

Another plea was filed, denominated a 'plea on equitable grounds,' which was substantially the same in its allegations.

Plaintiff filed a demurrer to both pleas, which was overruled as to the first and sustained as to the second, and thereupon issue was joined on the first plea, and a trial had, resulting in a verdict and judgment for defendant. An ordinary and evidentiary bill of exceptions was made up and settled, and the case is now here on writ of error.

Syllabus by the Court

SYLLABUS

1. Where a party assigns and transfers a promissory note for value, and 'guaranties its prompt payment at maturity,' such guaranty is an unconditional promise on his own account to pay a sum certain at a definite time. In a suit upon such a guaranty, presentation of the note to the maker when due, request of him to pay, and notice to the guarantor of dishonor need not be alleged; nor is the guarantee at law under any legal obligation to first resort to the maker of the note guarantied, or to any securities held for its payment; and the failure of the assignee of such note to present it when due to the maker for payment, or to give notice to the guarantor of its dishonor, or to resort to foreclosure proceedings of a mortgage given to secure such note, furnish no defense to such guarantor in a suit upon his unconditional guaranty thereof; and a demurrer to a plea setting up such defenses by the guarantor should be sustained. If the guarantor in such a case desires immediate resort to the mortgage security held for such note, his remedy is to pay the note according to his contract of guaranty, and then himself enforce the mortgage security to which he would be subrogated.

COUNSEL

Angus Paterson and T. S. Coogler, for plaintiff in error.

G. C. Martin, for defendant in error.

OPINION

PER CURIAM.

This cause, being reached in its regular order for final adjudication, was referred by the court to two of its commissioners, Messrs. Maxwell and Glen, who have reported that the judgment should be reversed, for reasons stated in the following opinion.

The first error assigned is that the court erred in overruling plaintiff's demurrer to defendant's first amended plea. The declaration alleged the making of a note to defendant, and that the latter, 'for value received transferred and set over the same to the plaintiff, and guarantied its prompt payment at maturity.' The cause of action, therefore, was an undertaking on the part of the defendant, accompanying the transfer of the note, whereby its prompt payment at maturity was guarantied by defendant, and this undertaking was upon a valuable consideration. Defendant promised on his own account to pay a sum certain at a definite time. 2 Daniel, Neg. Inst. §§ 1760, 1763; Brown v. Curtiss, 2 N. Y. 225; Johnson v. Gilbert, 4 Hill, 178. Nor was the undertaking a promise that the note should be paid if reasonable diligence should be exercised in pursuing the makers, or a guaranty that the note was collectible, but it was an absolute and unconditional guaranty of payment as stated. The rule of the common law is that under such a guaranty presentation of the note by the maker when due, request to...