Fowler v. Industrial Acceptance Corp.

• Decision Date: 20 April 1931
• Citation: 101 Fla. 259,134 So. 60
• Parties: FOWLER v. INDUSTRIAL ACCEPTANCE CORPORATION.
• Court: Florida Supreme Court

134 So. 60

101 Fla. 259

FOWLER v. INDUSTRIAL ACCEPTANCE CORPORATION.

Florida Supreme Court, Division B.

April 20, 1931

Error to Circuit Court, Alachua County; A. V. Long, Judge.

Suit by the Industrial Acceptance Corporation against J. R. Fowler. Judgment for the plaintiff, and the defendant brings error.

Affirmed.

COUNSEL

Hampton & Hampton, of Gainesville, for plaintiff in error.

C. R Layton and H. L. Gray, both of Gainesville, for defendant in error.

OPINION

DAVIS J.

In a suit by Industrial Acceptance Corporation against J. R Fowler, as defendant, the court below directed a verdict for the plaintiff for the amount due on an installment promissory note which had been given to Fowler, an automobile dealer, by one C. F. Burke, as part of the purchase price of a Studebaker automobile.

The defense was that the plaintiff was not the owner and holder of the note at the time of the institution of the suit. A set-off was also pleaded.

The set-off asserted was a claim for $800 damages because the note, together with a contract of conditional sale covering the car, and an insurance policy, were all delivered by defendant to a corporation described as 'Industrial Finance Corporation' and the purchaser allowed possession of the car, which was thereafter stolen, giving rise to a claim for the insurance which it is alleged the said corporation neglected to take any action concerning or make demand for at request of defendant, in consequence of which the defendant, Fowler, lost the collateral to his note and failed to obtain credit on the note for the amount of insurance that might have been collected for the theft of the car, and applied to the purchaser's debt.

Plaintiff met the burden of making a prima facie case by showing it was the holder of the note sued on, by offering in evidence the deposition of the vice president of the company to the effect that it held the note, and also by producing and filing the original note in evidence.

On the other hand, defendant utterly failed to offer any evidence to prove the allegations of his pleas of set-off as against the plaintiff. All that he did was to attempt to prove some cause of action against the so-called 'Industrial Finance Corporation,' on the theory that such corporation and plaintiff were in effect one and the same company.

Many alleged errors are urged as to the admission and rejection of evidence, but such assignments cannot be sustained because of the familiar rule that proffered evidence must be in accordance with the pleadings in the cause.

It was nowhere shown that there was any legal connection between the plaintiff and the 'Industrial Finance Corporation' which would make transactions with the latter admissible against the plaintiff in support of the pleas of set-off.

The promissory note sued on must be held to be a negotiable instrument, although it bore on its face the statement 'This note is for deferred instalments under a conditional sales contract for a motor vehicle.' Voges Motor Co. v. Ward, 98 Fla. 304, 123 So. 785. In that case it was held:

'Reference in bill or note to some extrinsic agreement, in order to destroy negotiability under Comp. Gen. Laws 1927, §§ 6761, 6763, must be such as indicates that the paper is to be burdened with the conditions of the agreement referred to.'

In view of the negotiability of the note and the fact that defendant utterly failed to connect the 'Industrial Finance Corporation' with 'the Industrial Acceptance Corporation,' there was no error in the court's rulings on the rejection of evidence which could only have...