Greeley v. Whitehead

• Decision Date: 05 March 1895
• Citation: 35 Fla. 523,17 So. 643
• Parties: GREELEY v. WHITEHEAD.
• Court: Florida Supreme Court

17 So. 643

35 Fla. 523

GREELEY v. WHITEHEAD.

Florida Supreme Court

March 5, 1895

Appeal from circuit court, Duval county; W. B. Young, Judge.

Action on a note by Newton Whitehead against Jonathan C. Greeley. Plaintiff had judgment, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. In a suit against the maker of a promissory note, payable at a particular time and place, it is not necessary to allege in the declaration a presentation for payment at the time and place named, nor to prove such presentation at the trial, in order to entitle the plaintiff to recover on such note. The maker of such note is still liable to pay, though the note be not presented at the time and place designated, and it devolves upon him to show as matter of defense a readiness at the time and place to meet the note, and such defense must be set up by plea, and can only be in bar of damages and costs of suit.

2. The plea alleging the defense of readiness to pay at the time and place designated in a note must not only allege such fact but also that the defendant has ever since been ready with the money then and there to pay the note, with profert in curia of the money.

3. The maker of a note, payable at a particular time and place, can under proper plea, avoid future interest, damages, and costs by showing that he was ready with the money at the designated time and place to make payment, and has ever since kept the same there; but this defense may be waived by subsequent action inconsistent therewith.

COUNSEL

R. B. Archibald, for appellant.

John E. Hartridge, for appellee. Judgment was obtained in the circuit court in February 1891, by appellee against appellant, in an action of assumpsit on a promissory note, and an appeal entered. The note sued on is as follows: 'Jacksonville, Fla., Aug. 4 1886. One year after date I promise to pay to the order of Newton Whitehead one thousand no-100 dollars, with interest from date at the rate of ten per cent. per annum until paid, for value received. Negotiable and payable at the Florida Savings Bank. And if not paid at maturity this note may be placed in the hands of an attorney at law for collection, and in that event it is agreed and promised by the makers and indorsers, severally, to pay an additional sum of one hundred dollars for attorneys' fees. J. C. Greeley.' The declaration, filed in November, 1890, alleges that by the said note the defendant promised to pay the sum therein mentioned, with 10 per cent. interest, one year after date, at the Florida Savings Bank, together with an attorney fee of $100 if the note was placed in the hands of an attorney at law for collection after maturity; but did not pay the same.

There is a count for $100 for attorney fee due by reason of the said note having, after maturity, been placed in the hands of an attorney at law for collection. Also counts for money loaned, and for interest on divers sums of money before that time, forborne by plaintiff at the request of the defendant.

The defendant filed two pleas to the several counts of the declaration, as follows: 'That said promissory note declared upon is, by express terms in the same, made payable at the Florida Savings Bank one year after the date thereof; that defendant, at the time and place named for the payment of said note, had the amount of money ready to pay the same, and interest thereon, and would have paid the same upon the presentation of said note, but that the same has never been presented for payment at the place named. For second plea defendant says that ever since said note became due he has had the amount named in said note, and interest, at the place named therein, and has been ready and willing to take up and pay the same, but that said note was never presented for payment, but instead thereof the plaintiff has always declined presenting the same for payment, and requested payment of the interest on said note semiannually, which was always promptly paid. And this defendant now makes profert of the amount due on said note, and pays the same into court.' A demurrer was sustained to the pleas, and, defendant declining to further plead, judgment was rendered against him for $1,139.42 and costs of suit.

Counsel filed in the circuit court an agreement in reference to the principal of the note paid into court by the defendant, but no statement of its contents need be made here.

As appears from the record, the only question presented is whether the court erred in sustaining the demurrer to the pleas.

OPINION

MABRY, C.J. (after stating the facts).

It is now the accepted doctrine in the United States that in a suit against the maker of a promissory note, payable at a particular time and place, it is not necessary to allege in the declaration a presentation for payment at the place named, or to prove such presentation at the trial, in order to entitle the plaintiff to recover on such a note. What was the English rule on the subject prior to the decision in Rowe v. Young, 2 Brod. & B. 165 rendered in 1820, is uncertain, as there was great diversity of opinion on the subject among English judges. It was at that time decided by the house of lords that if a bill of exchange be accepted, payable at a particular place, the declaration must aver presentment at that place, and the averment must be proved. It seems that prior to that time the king's bench had followed the rule now accepted by the American courts. In 1839 the supreme court of the United States decided, in the case of Wallace v. McConnell, 13 Pet. 136, that in an action against the maker of a note, payable at a particular time and place, no demand for payment need be averred or proved; and since that decision the American courts have been practically unanimous in holding the same doctrine. Reeve v. Pack, 6 Mich. 240; Montgomery v. Tutt, 11 Cal. 307; Caldwell v. Cassidy, 8 Cow. 271; Wolcott's Adm'r v. Van Santvoord, 17 Johns. 248; Hills v. Place, 48 N.Y. 520; Payson v. Whitcomb, 15 Pick. 212; Carley v. Vance, 17 Mass. 389; Lyon v. Williamson, 27 Me. 149; Armistead v. Armisteads, 10 Leigh, 526; Washington v. Bank, 1 How. 230; Yeaton v. Berney, 62 Ill. 61; Humphreys v. Matthews, 11 Ill. 471; Ripka v. Pope, 5 La. Ann. 61; 3 Rand. Com. Paper, § 1117; Story, Prom. Notes, § 228, and notes; Tied. Com. Paper, § 310. While the American courts uniformly hold that in a suit on a note against the maker it is unnecessary for a plaintiff to aver a presentation of the note for payment at the time and place designated for that purpose, it must not be supposed that the maker cannot set up as a matter of defense, so far as costs and damages are concerned, the fact that he was prepared with funds, and ready to make payment of the note at said time and place, and that the holder was not there to receive the money. The theory of the American courts...