Horvath v. Five Points Nat. Bank of Miami

• Decision Date: 11 January 1966
• Docket Number: No. 65-561,65-561
• Citation: 182 So.2d 22
• Parties: G. A. HORVATH, Minaco, Inc., and Unico, Inc., Appellants, v. FIVE POINTS NATIONAL BANK OF MIAMI, Appellee.
• Court: Florida District Court of Appeals

Page 22

182 So.2d 22

G. A. HORVATH, Minaco, Inc., and Unico, Inc., Appellants, v. FIVE POINTS NATIONAL BANK OF MIAMI, Appellee.

No. 65-561.

District Court of Appeal of Florida, Third District.

Jan. 11, 1966.

Rehearing Denied Feb. 2, 1966.

Kessler & Massey, Coral Gables, for appellants.

David D. Phillips and Hansford D. Tyler, Jr., Miami, for appellee .

Before TILLMAN PEARSON, BARKDULL and SWANN, JJ.

PER CURIAM.

By this interlocutory appeal, the appellants [plaintiffs in the trial court] seek review of an order dissolving a temporary injunction which had been issued upon a sworn complaint. The complaint alleged in substance that the defendant [appellee here] had advanced money to the plaintiffs and, as evidence of said indebtedness, took certain promissory notes secured by collateral in the form of corporate stock. It was alleged that, notwithstanding the maturity dates contained in the notes, the banking institution had agreed to successive renewals of same upon the payment of interest and certain payments of principal in at least a minimul amount of $5,000.00 each, after the first year. There were four notes in all involved and, notwithstanding this oral agreement to renew, the banking institution served a notice in the spring of 1965 pursuant to § 685.02, Fla.Stat., F.S.A., that it intended to sell said collateral if said notes were not paid in full at their maturity dates.

A temporary injunction issued without notice and, upon a motion to dissolve being filed, the chancellor entered the order here under review dissolving said temporary injunction because of the provisions of § 91 of 12 U.S.C., and this appeal ensued.

It is elementary that in reviewing the actions of a chancellor on appeal the order under attack will be sustained, even if the reasons advanced are erroneous. See: Tri-County Produce Distributors, Inc. c. Northeast Production Credit Association, Fla.App.1963, 160 So.2d 46; Oper v. Air Control Products, Inc. of Miami, Fla.App.1965, 174 So.2d 561; Massachusetts Bonding & Insurance Company v. Bryant, Fla.App.1965, 175 So.2d 88. We find that the chancellor was correct in dissolving the injunction, not because of the provisions of § 91 of 12 U.S.C., but because of the failure of the complaint to state a cause of action in that the plaintiffs failed to tender into the registry of the court the accrued interest, which they conceded to the due. See Freitag v. Simon, Fla.App.1965, 171 So.2d 918. It is basic, in the determination of the validity of a temporary injunction, that there be equity in the complaint. See: Hall v. Horne, 52 Fla. 510, 42 So. 383; Builders' Supply Company v. Acton, 56 Fla. 756, 47 So. 822; B.L.E. Realty Corporation v. Mary Williams Company, Inc., 101 Fla. 254, 134 So. 47. Having found that the complaint failed to state a cause of action, this opinion does not reach the conclusion of whether or not § 91 of 12 U.S.C. is applicable under the circumstances revealed by this record.

Thereafter, we affirm the order under review and return the matter to the chancellor with directions to dismiss the complaint.

Affirmed with directions.

TILLMAN PEARSON, Judge (concurring specially).

I am unable to agree that the plaintiffs' failure to tender into the registry of the court the accrued interest and the principal payment, rendered the complaint fatally defective. I would distinguish Freitag upon the basis of the different allegations of the complaints in the two cases and upon the relief sought.

Nevertheless, I concur in the conclusion that the complaint in the instant case failed to state a cause of action and in the decision reached by the majority. My conclusion is based upon the principle that a parol contract, made at the time of or prior to the execution of a negotiable promissory note, can not be pleaded or proved to show that the note was not to be paid at maturity, but was to be extended.

The law in Florida upon this subject is stated in Rivers v. Brown, 62 Fla. 258, 56 So. 553 (1911), as follows:

'To an action upon a promissory note, the terms of which constitute a plain, unconditional promise to pay to the plaintiff, on a stipulated date, a given sum of money, for value received, a plea is bad, upon demurrer, that seeks to contradict, alter, and vary the terms of the note, so as to make the time of payment uncertain and dependent upon the sale of cross-ties by the defendant .' (Quoting headnote 1).

But Cf., Cockrell v. Taylor, 122 Fla. 798, 165 So. 887, 105 A.L.R. 1338 (1936), [parol evidence allowed to show conditions precedent].

The principle seems to receive near universal recognition; it is summarized in Beutel' Brannen Negotiable Instruments, Law (Seventh Edition at page 384) as follows:

'A parol contract, made at the time of or prior to the execution of a negotiable promissory note, can not be pleaded or proved to show that the note was not to be paid at maturity, but was to be extended. Commercial Nat. Bank v. Hutchinson Box Co., 98 Kan. 350, 158 Pac. 44; First Nat. Bank v. Staab, 1002 Kan. 369, 171 Pac. 3; Deerfield State Bank v. Coerber, 113 Kan. 498, 215 Pac. 285; Naftalin v. LaSalle Holding Co., 151 Minn. 68, 186 N.W. 128, not citing N.I.L. Or that the maker of notes should have as long a time as it...