E.J. Sparks Enterprises, Inc. v. Christman

• Decision Date: 15 May 1928
• Citation: 95 Fla. 928,117 So. 388
• Parties: E. J. SPARKS ENTERPRISES, Inc. v. CHRISTMAN.
• Court: Florida Supreme Court

117 So. 388

95 Fla. 928

E. J. SPARKS ENTERPRISES, Inc. v. CHRISTMAN.

Florida Supreme Court

May 15, 1928

Rehearing Denied June 2, 1928.

Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.

Action by J. C. Christman against the E. J. Sparks Enterprises, Inc. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Party cannot at law or in equity show parol understanding that he was not to be bound by unambiguous written contract; pleas presenting parol understanding that party was not to be bound by unambiguous written contract should be stricken. A party cannot, either in law or in equity, contradict or vary the terms of an unambiguous written contract by showing that notwithstanding he signed such contract it was with the understanding resting in parol that he was not to be bound by its terms. Pleas presenting such a defense should be stricken.

Payee or holder may discard mortgage securing note and sue on note unless note or mortgage otherwise provides, regardless of statute (Acts 1927, c. 11993). Where there is a promissory note and a mortgage given to secure the payment of the note the payee or holder of the note has the right to discard the mortgage and resort to an action of law on the note, unless it should be otherwise provided in the note or mortgage. Chapter 11993, Acts of 1927, does not change this rule of law.

Holder or payee of one of series of notes, secured by mortgage, may sue thereon unless written contract otherwise provides; for any payee or holder of any one of notes of series secured by mortgage to sue thereon does not constitute multiplicity of suits. Where there are a series of promissory notes, falling due at different dates, all secured by a mortgage, the holder or payee of any one of the notes falling due has the right to resort to an action on such note, unless it is otherwise expressly provided in the written contract. Such course of action does not constitute a multiplicity of suits.

COUNSEL

Bryant & Trantham, of Lakeland, for plaintiff in error.

Gaines & Futch, of Leesburg, for defendant in error.

OPINION

JOHNSON Circuit Judge.

The defendant in error brought suit in the circuit court, Lake county, Fla., against the plaintiff in error, on a promissory note in the sum of $2,500; the note sued on dated November 18, 1925, and due on or before one year after date.

The declaration declares on the promissory note in form. To the declaration the plaintiff in error, who was defendant in the court below, filed two pleas as follows:

'That the promissory note sued upon herein was made, executed and delivered in pursuance to an executed contract for the bargain and sale of certain real estate, situate in the city of Leesburg, Lake county, Fla., and that on such purchase this defendant paid to the plaintiff the sum of $12,500 cash, and executed promissory notes aggregating the sum of $7,500, of which the note sued on is one, and likewise executed and delivered its mortgage to secure the payment thereof, covering said real estate. That the plaintiff had adequate security for the enforcement of the debt, evidenced by the said promissory notes of which the note sued on is one, and foreclosure of the said mortgage is available to this plaintiff, as a remedy for the enforcement of said debt. That by the terms of the said mortgage all of the promissory notes, secured thereby, became due upon the default in the payment of any one, and the plaintiff might by foreclosure proceedings enforce the payment of the entire indebtedness by such proceedings, but the plaintiff's action in bringing this suit on one of the promissory notes and not resorting to his mortgage security is a needless, burdensome and vexatious litigation. That the action of the plaintiff in resorting to a suit at law on the promissory note causes a multiplicity of suits and is designedly for the purpose of preventing this honorable court, sitting as a court of equity, from exercising its jurisdiction and discretion to grant or deny a deficiency judgment in a foreclosure proceeding on said mortgage.'

The second plea is as follows:

'The defendant, aforesaid, by its attorneys, aforesaid, for a further plea on equitable grounds to the declaration, repeats and reiterates each and every matter of fact hereinabove alleged in its first plea and of this it puts itself upon the country.'

The plaintiff interposed a demurrer to the defendant's two pleas on the ground 'that a promissory note is secured by a mortgage does not preclude a suit at law on the note.' The court belowed entered an order sustaining this demurrer, which is the basis of the first assignment of error.

The defendant in the court below filed amended pleas as follows:

'That the promissory note sued upon was made, executed, and delivered to the plaintiff as a part of the purchase price of a certain parcel of real estate situate in the city of Leesburg, Fla.; that to secure the payment of that part of the purchase price as evidenced by the promissory note sued upon, this defendant made, executed, and delivered a mortgage to the plaintiff upon said real estate in the usual form and containing the usual covenants set forth in mortgages of that character. That at the time of the purchase of the real estate aforesaid, it was understood and agreed between the parties that the seller, J. C. Christman, would look to and rely upon said mortgage as security for the payment of said promissory note and not to the individual responsibility of the maker thereof. Wherefore, this defendant pleads such facts in bar of the action on the note aforesaid, and this the defendant is ready to verify.'

'And for a further plea on equitable grounds, this defendant says: That the promissory note sued upon herein was made, executed, and delivered by this defendant to the plaintiff as one of a series of notes, representing part of the purchase price of a certain parcel of real estate situated in Leesburg, Fla., said notes aggregating the sum of $7,500, the remainder of said purchase price of said property being either paid in cash to the said J. C. Christman or evidenced by existing mortgage indebtedness on the said real estate which were assumed by the purchaser. That to secure the payment of the promissory note made by the defendant, as aforesaid, a mortgage covering the said real estate, and in favor of the said J. C. Christman, was executed and delivered by the defendant, which said mortgage provided, among other things, that in case of default in payment of any one of the said promissory notes, or any installment of interest thereon, the payee thereof might declare all of said notes due and payable and proceed to foreclose the mortgage for the entire amount thereof as though the full term of time provided in the said notes had elapsed. That it was further understood and agreed between the parties at the time that the seller, J. C. Christman, would look to and rely upon the mortgage security solely as a means of enforcing the payment of said notes and not to the individual responsibility of the maker thereof. Wherefore, this defendant says that suit by the plaintiff on the said notes in actions at law at the respective times of the maturity thereof causes a multiplicity of suits, and the defendant should not be permitted to maintain this action,' etc.

'And for a second plea on equitable grounds, this defendant says that the note sued upon herein was made, executed, and delivered by this defendant as one of a series of notes evidencing part of the purchase price on real estate situated in Leesburg, Fla., and at the time of making said notes, this defendant made, executed, and delivered to the plaintiff a mortgage on said real estate to secure the payment thereof, as it was understood and agreed between the parties that the seller would look to and rely upon the mortgage security solely as the means of enforcing payment of said notes; that the act of the defendant in bringing suit upon the note sued upon is done solely for the purpose of depriving the court, sitting as a court of chancery, of its jurisdiction in the premises and preventing this court sitting as a court of chancery from exercising its discretion in the matter of granting or refusing to grant a deficiency judgment in the foreclosure of said mortgage.

'Wherefore, this defendant says that the plaintiff ought not to be permitted to maintain this action,' etc.

The plaintiff in the court below demurred to the three amended...