Mann v. Etchells

• Decision Date: 14 April 1938
• Citation: 182 So. 198,132 Fla. 409
• Parties: MANN v. ETCHELLS.
• Court: Florida Supreme Court

182 So. 198

132 Fla. 409

MANN v. ETCHELLS.

Florida Supreme Court, Division B.

April 14, 1938

Rehearing Denied June 4, 1938.

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

Action by Etta G. Mann against Joseph Etchells on a promissory note. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL E. H. Wilkerson, of Eustis, for plaintiff in error.

Buie &amp Hippler, of Eustis, for defendant in error.

OPINION

CHAPMAN Justice.

This cause is here on writ of error to a final judgment entered in behalf of the defendant by the circuit court of Lake county Fla. The instrument sued on was a promissory note representing the balance due on the purchase price of certain property located in Lake county, Fla. The agreed purchase price of the property was the sum of $4,500. The sum of $3,500 had been paid, leaving the amount of the note in the sum of $1,000 unpaid. The maker of the note entered into an agreement with the mortgagee to reconvey the property to him for and in consideration of the $1,000 unpaid on the property, thereby taking a loss in the approximate sum of $3,500. It seems that a deed was left at a bank at Eustis where the mortgagee was to leave the purchase price mortgage and note sued upon herein and get the deed to the property. Some taxes had accumulated against the property and the mortgagee wanted these taxes paid by the maker of the note prior to acceptance of the deed and delivery of the note sued upon. This defense was interposed in the way of a plea to the action on the note. Under appropriate instructions by the court on the issues tendered, a verdict was rendered and judgment entered for the defendant. We fail to find error in the record, and the judgment appealed from is hereby affirmed.

WHITFIELD, P.J., and BROWN, J., concur.

ELLIS, C.J., and TERRELL and BUFORD, JJ., concur in the opinion and judgment.

On Petition for Rehearing.

CHAPMAN Justice.

On petition for rehearing it is contended that plea number 2 of the defendant filed March 10, 1936, and the replication of the plaintiff thereto filed on March 30, 1936, viz.:

'2. For a further plea this defendant says, that it is true that he executed the note mentioned along with his wife, Merilla G. Etchells, and agreed to pay the sum of money mentioned therein, but that in order to secure the payment thereof, he, together with his wife, executed and delivered to the plaintiff a mortgage securing the payment of the indebtedness evidenced by said note, which said mortgage covered property in Lake County, Florida, described as follows, to-wit: 'Begin at the Northwest corner of Block Twenty-Six, according to Clifford's Division of the Town of Eustis, run thence East 97 1/6 feet, run thence South 118 feet, run thence West 97 1/6 feet, run thence North 118 feet to the point of beginning' and that same was a purchase money mortgage being in the sum of One Thousand ($1,000.00) Dollars, and dated October 24th, 1925, and securing the note aforementioned of the same date. Plaintiff says that the total purchase price of the property was the sum of Forty-five Hundred ($4,500.) Dollars, of which said sum Thirty-five Hundred Dollars was paid prior to the execution of the note and mortgage securing same. Plaintiff further says that subsequent to execution of the note and mortgage securing same, that he entered into an Agreement with the plaintiff and her then husband, Abram Mann, whereby they agreed that if said Joseph Etchells and wife, would execute and deliver to said Abram Mann and wife, at the First State Bank of Eustis, Florida, a good and sufficient Warranty Deed, conveying said property to them, excepting taxes, and deliver possession of the property to plaintiff and her then husband, now deceased, they would satisfy said indebtedness sued upon in this cause, and cancel and surrender the note and mortgage securing same. Defendant says that in accordance with said agreement and on to-wit: January 6th, 1933, he joined by his wife did convey by Warranty Deed the property aforementioned to Abram Mann and wife, Etta G. Mann, and placed same in the Bank aforementioned in full and complete satisfaction of the indebtedness sued on in this cause and at the said time delivered to plaintiff and her then husband, now deceased, said property. That the plaintiff and her then husband did enter into and take possession of the property and have continued since said time to hold possession thereof, collect the rents, they having rented same to divers persons and either plaintiff or her husband, now deceased, have since said time held and exercised ownership and possession thereof. Defendant says that said deed aforesaid and so placed in the Bank and the delivery of possession of said property was given in full accordance with the agreement aforementioned and in full satisfaction of the note sued upon and the mortgage securing same, but that the plaintiff has failed and refused to satisfy same of record.'

'For a reply to the plea numbered '2' filed in said cause by the defendant the plaintiff in said cause says that the defendant has never entered into any agreement with either the plaintiff in this cause or said plaintiff and her then husband, Abram Mann, whereby either she or they agreed that if Joseph Etchells and his wife would execute and deliver to said Abram Mann and said plaintiff at the First State Bank of Eustis, Florida, good and sufficient warranty deed conveying said property to the plaintiff and her deceased husband, excepting taxes, and deliver possession of the property in said plea referred to to plaintiff and her then husband that she and her then husband would satisfy the indebtedness sued upon in this cause nor that they would cancel and surrender the note and mortgage securing same. Said plaintiff further says that the defendant did not in accordance with any such agreement either on January 6th, 1933, or at any other time, joined by his wife or otherwise, convey by Warranty Deed the property in said plea mentioned to Abram Mann and wife, Etta G. Mann, and place same in the bank aforementioned in full and complete satisfaction of the indebtedness sued upon in this cause nor has the defendant ever delivered to the plaintiff and her deceased husband said property and the plaintiff and her deceased husband never have entered into and taken possession of the property nor have they continued since that time to hold possession of said property nor have they ever exercised ownership or possession of such property nor has any Deed ever been placed in said bank, nor has any delivery of the possession of such property ever been given, in full accordance with any agreement either in full satisfaction of said note sued upon nor in satisfaction of the mortgage securing same and it is true that the plaintiff has failed and refused to satisfy same of record'.

were not only insufficient in law but the facts adduced at the trial did not support the plea and these material questions were overlooked in the original opinion. A plea of accord and satisfaction is fully set out in the case of Nelson v. Ziegfeld, 100 Fla. 1433, at text pages 1435-1437, 131 So. 316. The plea of accord and satisfaction in the case at bar is modeled largely after the one appearing in Nelson v. Ziegfeld, supra, and the material allegations of the plea are sufficient in law and submits, if sustained by the evidence, a good defense to the action. See Sanford v. Abrams, 24 Fla. 181, 2 So. 373; Kline v. Eugene Berninghaus Co., 102 Fla. 362, 135 So. 837; Sendoya v. Chattanooga Brewing Co., 73 Fla. 648, 74 So. 801; Sapp v. Atlantic Nat. Bank of Jacksonville, 105 Fla. 507, 141 So. 605.

Let us examine the facts offered in support of the plea. On page 9 of the transcript is a letter signed by the plaintiffs addressed to the defendants and is, viz.:

'Eustis, Fla. May 1, 1933.

'Mr. and Mrs. Joseph Etchells,

'Dear People----

'As this is the first of May I am reminded that you will soon be leaving for the North. The object of this letter is to notify you that we are now in a position to give you satisfaction of the mortgage (without interest) on the same providing you can give us the deed with a clear tax title. We have a project on foot whereby we can dispose of this property providing we can give a clear title as this offer made us is satisfaction of deed and title without any money down. It places us in a position to clear the mortgage claim for you, with an agreement to us for our claim on the property in a satisfactory manner to us. Which leaves us without money to pay any delinquent tax. Wishing that this may meet with satisfaction to you, we remain

_________________________________ 'Yours respectfully,

_________________________________ 'Etta and Abram Mann'

'Filed...