Frank v. Williams

Decision Date26 July 1895
Citation34 Fla. 136,18 So. 351
PartiesFRANK et al. v. WILLIAMS.
CourtFlorida Supreme Court

Appeal from circuit court, Leon county; D. S. Walker, Judge.

Action by Abraham Frank and Joseph Herman, partners as Frank, Herman & Co., against Helena Williams, executrix of the estate of R S. Williams, deceased. Defendant had judgment, and plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. A plea to a declaration on a guaranty to pay for such goods as a third person might purchase, alleging that after default on the part of such third person to pay for the goods the guarantee closed and settled the account with such person by taking his notes and extending the time of payment for the goods without the consent of the guarantor, persents a good defense, if true.

2. Whether an engagement is a collateral agreement or an original undertaking is often a question of difficulty; but when the promise is to do a particular thing, which another is bound to perform in the event he does not do it, the obligation is regarded as an original undertaking, and not a strict or collateral guaranty.

3. The position of a guarantor in an original undertaking to do something that another is under obligation to do is in the nature of a surety, as between himself and the principal debtor.

4. Any obligatory agreement upon a good consideration, between a creditor and a principal debtor, to extend the time of payment for any definite period, will discharge the surety if made without his consent.

5. The mere acceptance by a creditor from his debtor of a promissory note for a pre-existing simple contract debt does not, as a general rule, in the absence of an agreement to that effect extinguish the original demand; yet the acceptance of such note, payable at a future time, will have the effect to extend the time of the payment of the debt until the maturity of the note.

6. It is error for a trial judge to read in the hearing of a jury a reported case, and state that the facts of the case read from were similar to the one then before the court, and that he adopted the decision in the case read as the law on the subject. In no more effective way could a judge intimate his opinion as to the effect of evidence before the jury than by saying it was similar to that of an adjudged case in which the testimony was commented on as being sufficient to sustain a finding thereon.

7. Where an error has been committed by the trial court, but it affirmatively appears, and the appellate court has no doubt after carefully considering the entire evidence and the record, that such error worked no injury or prejudice to the appellant, the judgment will not be reversed on account thereof.

8. Where a plea, or subsequent pleading, responsive to a declaration or former pleading, sets up new matter in avoidance, a reply must be made to or issue joined on such pleading; but the absence of a similiter to a plea, or subsequent pleading tendering an issue, will not cause a reversal of the judgment when the parties voluntarily go to trial on the pleadings, without raising any objection on account of the absence of such similiter.

9. The circuit court being invested by statute with authority to order the opening of depositions taken under a commission on interrogatories, an order made for that purpose on proper application will be deemed properly made, in the absence of any showing that the court acted improperly, or that any injury was done to either party thereby.

COUNSEL

R. W Williams, for appellants.

D. W. Gwynn, for appellee.

Appellants instituted suit in 1889 against R. S. Williams, who died pending the suit, and it was revived against his executrix. The trial resulted in a judgment in defendant's favor and an appeal was entered.

The substance of the various counts of the declaration is as follows: First. That in consideration that plaintiffs, at the request of defendant, would credit one M. R. Cohen goods to the extent he wanted, defendant would guaranty the payment for the same, and that plaintiffs delivered to Cohen goods to the value of $1,511.91, and he had not paid the same, except $794.78, by reason whereof defendant had become liable to plaintiffs for the balance. Second. That in consideration that plaintiffs, at the request of defendant, would sell M. R. Cohen whatever goods he wanted, defendant undertook and promised to guaranty to plaintiffs the payment of whatever Cohen purchased from them; and that, confiding in such undertaking and promise, plaintiffs sold and delivered to Cohen goods to the amount of $1,511.91, which had not been paid to plaintiffs, except the sum of $794.78. Third. That on the 23d of April, 1888, in consideration that plaintiffs, at the request of defendant, would sell to Cohen whatever goods he wanted, defendant undertook and promised to guaranty to plaintiffs the payment for said goods, and, confiding in such undertaking and promise, plaintiffs credited and delivered to Cohen goods to the amount of $1,511.91, by reason whereof defendant had become liable to pay plaintiffs the same, except $794.78, which had been paid. Fourth. That on the 23d of April, 1888, in consideration that plaintiffs, at the request of defendant, would sell to M. R. Cohen such goods as he wanted, defendant assumed and promised that he would pay plaintiffs all such sums of money as such goods would amount to; and that afterwards, on the 25th day of April, 1888, at the request of defendant, plaintiffs sold to Cohen goods to the amount of $1,511.91, which sum has not been paid, except $794.78. Fifth. That on the 23d of April, 1888, defendant, in consideration that plaintiffs would, at his request, sell to M. R. Cohen goods to such an amount as he wanted, undertook and promised to guaranty the payment of whatever sum Cohen might purchase from plaintiffs; and in consideration of the premises plaintiffs did, on the 25th day of April, 1888, sell to Cohen goods to the amount of $1,511.91, $794.78 of which had been paid by him, by reason whereof defendant became liable to pay the balance to plaintiffs whenever requested; and, being so liable, he did, on the 27th of April, 1888, undertake and promise to pay plaintiffs said sum of $1,511.91, and had failed to do so. Sixth. That on the 27th day of April, 1888, for a valuable consideration received from plaintiffs, the defendant agreed to and did guaranty the prompt payment of all purchases made by M. R. Cohen from plaintiffs on the 25th day of April, 1888, and that afterwards the sum of $1,511.91, less the sum of $794.78, remained unpaid from Cohen to plaintiffs on account of the goods, the payment of which had been requested of defendant, and refused. Seventh. That in consideration that plaintiffs, at the request of defendant, would sell to Cohen such quantities of goods as he should want, defendant undertook to guaranty to plaintiffs payment of all such sums of money as should from time to time become due and payable to them from Cohen on account of said goods, and which should remain due after the expiration of such times from the sales and delivery of the goods as payments in respect thereof should respectively become due. That in consequence thereof plaintiffs, on the 25th of April, 1888, sold to Cohen goods, in respect to which divers large sums of money became due and remained unpaid, of which defendant had notice. The common count for money found to be due from defendant to plaintiffs was added.

The first plea is that the account sued on had been settled, and nothing was due plaintiffs thereon. Issue was joined on this plea. The second plea was demurred to, and the demurrer sustained. The third plea alleges that after default of Cohen in the payment of the account sued on, and on or about the 20th day of March, 1889, he and plaintiffs closed and settled the same, and the latter extended the time for the payment of the amount due on the account by taking from Cohen 13 promissory notes for different sums, aggregating the whole amount due on the account, payable at different dates from May 14, 1889, to November 5, 1889, without the knowledge or consent or subsequent ratification of defendant. A demurrer to his plea was overruled, and plaintiffs replied that the account was not settled by Cohen in the manner alleged, or in any other manner, and that plaintiffs did not take from Cohen 13 promissory notes in settlement of the account as alleged. A fourth plea alleges that after default in paying the account sued on, plaintiffs and Cohen, without the knowledge or consent of defendant, compromised and settled the account by plaintiffs' taking from Cohen 13 promissory notes, which were discounted by plaintiffs, and the cash received therefor from the Shawmet Bank of Boston, Mass. To this plea plaintiffs replied that they did not taken from Cohen the notes mentioned in the plea in compromise and settlement of the account, but 12 promissory notes were sent to plaintiffs, and received by them as an accommodation to Cohen and defendant; that said notes were placed in the Shawmet Bank, and became due and payable before suit brought, two of which were paid, and plaintiffs called upon defendant for payment of amount due, but he failed to pay same; that plaintiffs took up and withdrew said notes from the bank, and were the holders and owners of the same, and were prepared to produce them to be canceled; and that the notes had not been paid to plaintiffs except as stated, and the money mentioned in the declaration was due and unpaid.

Defendant's rejoinder to the replication was that he had no notice of the giving of said notes, and received no behefit for them, but they were received by plaintiffs to enable them the better to meet their own obligations, and were placed by them in the Shawmet Bank, beyond their...

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24 cases
  • U.S. v. Nill
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 5, 1975
    ...the giving of a negotiable instrument shall operate as a payment if it is to have that effect. This rule was announced in Frank v. Williams, 36 Fla. 136, 18 So. 351, and prior thereto, in Salomon v. Pioneer Co-operative Co., 21 Fla. 374, and cited with approval in Holcombe v. Solinger & Son......
  • Williams v. Peninsular Grocery Co.
    • United States
    • Florida Supreme Court
    • May 3, 1917
    ...may not of his own volition change the original contractual status of the parties and impair any of their rights. See Frank v. Williams, 36 Fla. 136, 18 So. 351. Following the rule as announced in the case of Cotten Williams, 1 Fla. 37, and followed ever since in this state, that a plea hav......
  • Capital National Bank of Tampa v. Hutchinson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 22, 1970
    ...v. Stratton, supra; Wishart v. Gates Rubber Co. Sales Div., Inc., supra. As the Florida Supreme Court stated in Frank v. Williams, 36 Fla. 136, 18 So. 351, 356 (1895), a landmark case in this it is true, as a general rule, that the mere acceptance by a creditor from his debtor of a promisso......
  • Hopkins v. State
    • United States
    • Florida Supreme Court
    • August 3, 1906
    ... ... 543, 8 So. 450; Baird v ... Steadman, 39 Fla. 40, 21 So. 572; Oppenheimer v ... Guckenheimer, 39 Fla. 617, text 620, 23 So. 9; Frank ... v. Williams, 36 Fla. 136, 18 So. 351; Robinson v ... Hyer, 35 Fla. 544, 17 So. 745; Wooten v. State, ... 24 Fla. 335, 5 So. 39, 1 L. R. A ... ...
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