Langley v. Owens

• Decision Date: 21 November 1906
• Citation: 42 So. 457,52 Fla. 302
• Parties: LANGLEY v. OWENS.
• Court: Florida Supreme Court

42 So. 457

52 Fla. 302

LANGLEY v. OWENS.

Florida Supreme Court, Division A.

November 21, 1906

Error to Circuit Court, Escambia County; Francis B. Carter, Judge.

Action by T. E. Owens against Frank Langley. Judgment for plaintiff and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where there is no dispute as to the character or device used in the execution of a written instrument, it is for the court to determine whether the device as used constitutes a seal.

Under the statute providing 'that a scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be effectual as a seal,' a scrawl or scroll affixed as a seal to the signature of the maker of a promissory note is effectual as a seal, and when such scrawl or scroll printed or written, appears affixed to the maker's signature in the place usually occupied by the seal, it is in the absence of anything in the note showing a contrary intention and in the absence of fraud, sufficient to give it effect as a seal.

When the letters 'L. S.,' inclosed within parentheses, thus, '(L. S.),' appear opposite the signature of the maker of a promissory note in the usual place for the seal, but with no reference to it in the body of the instrument, whether written or printed, it is evidence of a purpose to make a sealed instrument.

The character or device, '(L. S.),' printed or written, appearing in the usual place for the seal opposite the signature of the maker of a note, is not ambiguous, since it has a definite legal meaning and effect when so used; and such character or device does not merely indicate the place where the seal should be put, since, when it is so used, the statute makes it effective as a seal, and such a character or device is a scrawl or scroll affixed as a seal, within the meaning of the statute.

When a written instrument is complete in itself, and is not ambiguous or uncertain in its meaning, the intention of the maker and the legal effect of the terms used in the instrument should be determined by the court from an inspection of the instrument itself; and a plea averring that the intention of the maker differs from the legal effect of the terms used in executing the written instrument is demurrable.

When words or terms having a definite legal meaning and effect are knowingly used in a written instrument, the parties thereto will be presumed to have intended such words or terms to have their proper legal meaning and effect, at least in the absence of any contrary intention appearing by the instrument.

A promise in writing to pay money, executed with the character or device, '(L. S.),' printed or written opposite the name of the promisor in the usual place for the seal, has a definite meaning and legal effect, and it should be presumed that the maker intended it to have such proper legal meaning and effect; nothing to the contrary appearing by the instrument as executed.

The meaning and legal effect of a promise in writing to pay money should be determined by the court upon an inspection of the writing itself as executed, and the intention of the maker in so executing it should be gathered from the terms of the writing itself, where there is no ambiguity or fraud in the execution.

COUNSEL Maxwell & Reeves, for plaintiff in error.

T. E. Owens and S. Pasco, Jr., for defendant in error.

OPINION

WHITFIELD J.

The declaration, filed January 20, 1905, in the circuit court for Escambia county in this cause, is as follows: 'The plaintiff, T. E. Owens, by his attorney, sues the defendant, Frank Langley, for that prior to the institution of this suit, on the 11th day of May, A. D. 1893, the defendant by his three promissory notes under seal, which notes are attached hereto and are hereby made a part hereof, promised to pay to the firm of Weinberg & Hays the sum of $97.37 thirty days after date, and the sum of $100 sixty days after date, and the sum of $100 ninety days after date; that the said payees thereafter for a valuable consideration indorsed the said notes and delivered them to the plaintiff; that the defendant has not paid said notes, or any part thereof, though often requested so to do. Wherefore plaintiff sues and claims damages in the sum of six hundred dollars.'

Attached to the declaration are three notes, similarly executed, one of which is as follows:

'$97.37.

Tampa, Fla., May 11th, 1893.

'Thirty days after date I promise to pay to the order of Weinberg & Hays ninety-seven & 37/100 dollars at Gulf National Bank. Value received.

'No -----. Due -----.

'Frank Langley. [L. S.]'

The defendant presented a plea that 'the said promissory notes the declaration described were not under seal, and that the above cause of action thereon did not accrue within five years before this suit.' The plaintiff demurred to this plea on the grounds (1) that it appears from the record that the instrument sued on is a specialty and is not barred in five years; (2) that the said plea does not set forth any defense to the cause of action herein.' This demurrer being sustained, the defendant by leave of court filed the following pleas:

'(2) That the said promissory notes in the declaration described were not executed by the defendant as instruments under seal, nor did he adopt or intend the letters 'L. S.,' with brackets inclosing them, printed after his signature to said notes, as his seal; that plaintiff is not a bona fide purchaser or assignee thereof, for value, before maturity, without notice; and that the said alleged cause of action upon said instruments did not accrue within five years before this suit.

'(3) That the said promissory notes in the declaration described were given in pursuance of an agreement between this defendant and the payees of said notes, whereby the defendant was to give to the said payee his promissory notes and not sealed instruments for the amounts in said notes designated; that the letters 'L. S.,' with brackets inclosing them, were not regarded, either by the said defendant or by the payees of said notes, in the execution and delivery thereof, as being seals, nor were the said instruments given or taken by the said parties as sealed instruments; that plaintiff is not a bona fide purchaser or assignee thereof, for value, before maturity, without notice; and that the said alleged cause of action based thereon did not accrue within five years before this suit.

'(4) That the said promissory notes in said declaration described were without consideration, in this: That the said payees, at the time of the giving of the said notes, were indebted to the said defendant in a large sum of money, then due and payable; that they were then in an insolvent and failing condition, and were fraudulently disposing of their property in such way as to avoid the payment of their just debts; that the defendant, becoming cognizant of this fact, pressed them for payment of their indebtedness to him, and that they refused to settle with him otherwise than by giving him a designated portion of the stock of goods which they then held, which they refused to do unless this defendant, besides canceling his said indebtedness, would give them the said instruments now sued upon; that the said goods which the said payees offered to surrender to him as aforesaid were of much less value than the indebtedness existing and then due on the part of said payees to this defendant; that this fact was known to the said payees, and that the said notes were given in compliance with this demand; that this defendant was unwilling to settle his said claim upon this basis, and at first refused to do so, but the said payees refused positively to make any other payment to him than as aforesaid, and finally, under protest and under duress, in order to prevent a total loss of his indebtedness, the said notes were given under said arrangement, this defendant notifying said payees, at the time, that the said notes would never be paid, as the whole transaction was a fraud upon him and void; that the said property surrendered to him as aforesaid was sold by said defendant, shortly after said surrender, to the best advantage and for the best market price, and realized a sum several hundred dollars less than the said original indebtedness of said payees to this defendant; that there was no indebtedness then owing from this defendant to said payees, or any consideration whatever for the said notes; and that the said notes were never presented to this defendant for payment, or demand for payment made upon him, until a few weeks before the institution of this suit, and the plaintiff is not a bona fide purchaser or holder of said notes, for valuable consideration, before maturity, without notice.'

The plaintiff demurred to the second and third pleas on the grounds: '(1) The said plea set up a contemporaneous oral agreement to vary the terms of the written instrument sued on and attached to and made a part of the declaration herein; (2) that neither of said pleas set up any defense to the cause of action set up in the declaration filed herein; (3) that the written instruments sued on, and attached to and made a part of the declaration herein, are instruments under seal, and are not barred under twenty years after the cause of action has accrued; (4) that the said pleas are insufficient in law.'

The fourth plea was demurred to on the grounds '(1) That said plea is contradictory and repugnant; (2) that, while said plea purports to be for want of consideration, it...