Klein v. Witte, 2761
| Decision Date | 20 June 1962 |
| Docket Number | No. 2761,2761 |
| Citation | 142 So.2d 789 |
| Parties | David KLEIN, as Executor of the Estate of Marie Mensing, Deceased, Appellant, v. Henry WITTE, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Lawrence J. Robinson, Stockham, Robinson & Harrison, Sarasota, for appellant.
Frank A. Pavese, Pavese & Waldorf, Fort Myers, for appellee.
Plaintiff (appellant) sued the defendant (appellee) in an action on a promissory note. The defendant answered admitting the execution of the note and alleged forgiveness of the debt by gift through destruction of the note by the plaintiff's decedent. Plaintiff moved for summary judgment, which was denied. Subsequently, at the trial of the issues, the plaintiff introduced into evidence the promissory note. The note had been torn into four pieces and then reconstructed with transparent cellophane tape. The court then held that the burden of proof was on the plaintiff to show that the note was a valid instrument by showing that the tearing thereof was unintentional. In endeavoring to meet this burden, plaintiff offered into evidence the deposition of Minnie Fohn, one of the residuary devisees under the will. The court sustained the objection to the deposition, and the plaintiff, having no further testimony, rested. Final judgment was then entered in favor of the defendant.
Plaintiff contends that all he had to do was to introduce the note into evidence and he thereby established a prima facie case and the burden of going forward then shifted to the defendant to show that the debt had been discharged, citing authority to establish this principle, Knauer v. Levy, Fla.App.1959, 115 So.2d 776. This decision, and the numerous others to the same effect, are all predicated upon the introduction into evidence of a note not torn into four pieces as was the note in this case. Had the note not been so torn, the burden of proving each element essential to the validity of a gift would have been upon the defendant. Hunter v. Moore, Fla.App.1961, 131 So.2d 489. It is likewise elementary that when the defendant in an action on a promissory note tenders a plea of payment the burden is on him to prove his plea by a preponderance of the evidence. Click v. Dowd, 1931, 102 Fla. 336, 135 So. 840.
The Negotiable Instruments Law, Chapter 675, Florida Statutes, F.S.A., provides:
'675.28 How negotiable instruments discharged--(1) A negotiable instrument is discharged:
* * *
* * * '(c) By the intentional cancellation thereof by the holder.
* * *
* * *
'675.31 Unintentional cancellation--A cancellation made unintentionally, or under a mistake, or without the authority of the holder, is inoperative; but where an instrument, or any signature thereon, appears to have been canceled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake or without authority.'
This Court takes judicial knowledge of the fact that a common method of intentional cancellation of a negotiable instrument is by the tearing of the instrument into pieces. Thus, this instrument appears to have been cancelled, and Section 675.31, Florida Statutes, F.S.A., supra, placed the burden of proof on the plaintiff to show that the cancellation was made unintentionally, or under a mistake, or without authority. It has been held that mutilation of a negotiable instrument by burning was presumed intentional and the burden was on the plaintiff to show that such burning was done unintentionally, or by mistake, or without authority. Jones' Adm'rs v. Coleman, 1917, 121 Va. 86, 92 S.E. 910. To like effect see 11 C.J.S. Bills and Notes §§ 652 and 662.
With respect to the plaintiff's tender into evidence of the deposition of Minnie Fohn, the objection made by the defendant and sustained by the court was that the proffered testimony was incompetent under the provisions of the 'Dead Man's Statute.' Section 90.05, Florida Statutes, F.S.A., the material parts of which are as follows:
'No person * * * shall be excluded from testifying as a witness by reason of his interest in the event of the action * * * provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party, or interested person, derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, * * * against the executor, or administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, * * * but this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor * * * shall be examined on his own behalf, or as to which the testimony of such deceased person * * * shall be given in evidence.' (...
To continue reading
Request your trial
-
Hochstadt v. Orange Broadcast, 90-2752
...L.Ed.2d 755, 762-63 (1991) (validity of creditor's claim determined by rules of state law) (citations omitted), and Klein v. Witte, 142 So.2d 789, 790 (Fla. 2d DCA 1962) ("It is likewise elementary that when the defendant in an action on a promissory note tenders a plea of payment the burde......
-
In re Estate of Hatten
...v. Hines, 444 F.Supp. 1201, 1206 (M.D.Fla.1978); Allstate Ins. Co. v. Doody, 193 So.2d 687, 689 (Fla. 3d DCA 1967); Klein v. Witte, 142 So.2d 789, 792 (Fla. 2d DCA 1962). The same logic applies here. The defendant is being sued personally for damages. As in McDougald, the Dead Man's Statute......
-
Ss Funding LLC v. Phelan
...canceled unless [SS Funding] proves that the cancellation was made unintentionally, under mistake, or without authority. Klein v. Witte, 142 So.2d 789 (Fla. 2d DCA 1962)." The trial court concluded that SS Funding delivered the 2002 Notes "with the intent to cancel," and that SS Funding fai......