L & S Enterprises, Inc. v. Miami Tile & Terrazzo, Inc., 62-369
| Decision Date | 08 January 1963 |
| Docket Number | No. 62-369,62-369 |
| Citation | 148 So.2d 299 |
| Court | Florida District Court of Appeals |
| Parties | L & S ENTERPRISES, INC., a Florida corporation; Fred Schneider, Jean C. Lehman and Richard S. Flink, Appellants, v. MIAMI TILE & TERRAZZO, INC., a Florida corporation, et al., Appellees. |
Anderson & Nadeau, Miami, for appellants.
Feibelman, Friedman, Hyman & Durant, Miami, for appellees.
Before PEARSON, TILLMAN, C. J., and BARKDULL and HENDRY, JJ.
The appellants [certain of the defendants in the trial court], appeal from a final judgment rendered by the trial court adjudicating joint and several liability in regard to a promissory note.
The cause came on for final hearing upon stipulation of the parties that the trial judge could consider the case on the pleadings and depositions. Therefore, this court is in the same position in examining the record as was the trial judge, and the presumptions as to the determination of the evidentiary matters are not as strong on this record as on one which presents conflicting testimony which was actually heard by the trier of the facts. See: West Shore Restaurant Corp. v. Turk, Fla.1958, 101 So.2d 123.
On July 1, 1958, L & S Enterprises Inc., being indebted to Tri-City Tile Company, Inc., executed a promissory note in the principal sum of $6,600.00, bearing interest at the rate of 6% per annum and providing for the recovery of attorneys' fees, costs, etc. Subsequent to the execution and delivery of the note, the individual appellants, Schneider, Lehman and Flink, endorsed the note, as did the individual appellee, Whitton. After the maturity of the note and while in default, Tri-City Tile Company, Inc., [on August 3, 1959] entered into an agreement with H. J.-M & D Corporation [successor in interest to the principal assets of L & S Enterprises, Inc., a motel] and other creditors of L & S Enterprises, Inc. This agreement was, in fact, an arrangement for the payment of the creditors of L & S Enterprises, Inc., wherein and whereby the enumerated creditors of L & S Enterprises, Inc., waived their rights to any claim for liens as a result of the work done in improving the motel and waived their rights to be paid for a period of 12 months following the execution of the agreement, after which 12 months period they agreed to be paid a portion of the profits derived by the said H. J.-M & D Corporation in the operation of the motel, which had previously been transferred to the latter corporation by L & S Enterprises, Inc. The individuals who had endorsed the promissory note subsequent to its delivery did not execute the agreement between the several creditors of L & S Enterprises, Inc., but same was solely executed by H. J.-M & D Corporation and the various creditors of L & S Enterprises, Inc., including Tri-City Tile Company, Inc.
Subsequent to the execution of the agreement by the creditors and the successor in interest to the principal asset of L & S Enterprises, Inc., the promissory note in question came into the possession of Miami Tile & Terrazzo, Inc., the appellee who instituted the action as plaintiff in the trial court. Of course, at the time Miami Tile & Terrazzo, Inc., took possession of the promissory note, it was in default and no payments had been received or credited thereon by virtue of the agreement between the creditors and H. J.-M & D Corporation. Miami Tile & Terrazzo, Inc., sought recovery of the $6,600.00 principal of the note, plus accrued interest, attorneys' fees and costs. Judgment for the full amount sought by the plaintiff was rendered by the trial court and is here under review. The appellants have assigned several errors in the rendition of the final judgment. The only one that we deem to have merit is that which contends that the court erred in failing to apply the provision of § 675.28(2)(f) Fla.Stat., 1...
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...matters in not as strong as when the Judge, as the trier of the facts, personally hears the witnesses. L & S Enterprises, Inc. v. Miami Tile & Terrazzo, Inc., Fla.App.1963, 148 So.2d 299. Where the Chancellor does not hear the witnesses and acts on the same pleadings and transcribed evidenc......
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