Mccallum v. Driggs

• Decision Date: 16 April 1895
• Citation: 17 So. 407,35 Fla. 277
• Parties: McCALLUM et al. v. DRIGGS.
• Court: Florida Supreme Court

17 So. 407

35 Fla. 277

McCALLUM et al. v. DRIGGS.

Florida Supreme Court

April 16, 1895

Appeal from circuit court, Duval county.

Action by John S. Driggs against Archibald McCallum and J. C Greeley. Judgment for plaintiff. Defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. 'A man not named as payee who puts his name on the back of a note before delivery to the payee, upon the faith of which money was loaned or credit given by the payee to the maker, is liable on it as an origianl promisor, although it be proved he wrote his name on the note as surety for the maker. His liability is that of a joint and several maker of the note.' Melton v. Brown, 6 South. 211, 25 Fla. 461. In such a case there need be no specific allegation in the declaration that money was loaned or credit given by the payee to the maker, upon the faith of the indorsement. Substantial proof before the trial court that such credit was given, and that the note was received by the payee in part payment of the purchase money of land and other property, is sufficient to hold an indorser, under such circumstances, as an original maker.

2. It is not necessary to prove the consideration of a note before offering it in evidence when the consideration is denied by plea; but, when there is such a plea denying the consideration, the plaintiff cannot take judgment upon the note alone, but must prove the consideration upon which it was given.

3. When a defendant, by plea, has denied the consideration of a note sued upon, it is not erroneous for the court to permit the plaintiff to offer evidence tending to prove such consideration.

4. The court below ruled out a question to one of the defendants and the answer thereto, as follows: 'In what capactiy did you place your name upon the note sued upon?' Answer 'As indorser,'--but permitted said defendant to testify fully as to the circumstances under which said indorsement was made, and which circumstances show conclusively that he was an original maker of the note: Held that, admitting the referee to have erred in the ruling, it was a harmless error. The incorrect legal opinion of the defendant could not have affected the judgment in the case.

5. It is not erroneous to refuse to admit irrelevant testimony.

6. As to whether it was necessary, in the interval between the going into effect of the constitution of 1885 and the effective operation of the Revised Statutes in 1892, that pleas in civil cases at law should be sworn to, not determined; but where a plea was not allowed to be filed because it was not sworn to, but another plea, the same in substance as that excluded, was subsequently filed, and under this last plea all evidence was admissible, and was admitted which could have been offered or admitted under the excluded plea, the ruling excluding the plea, even if erroneous, did not change the issues or affect the legal rights of the parties, and is not reversible error.

7. A plea to a promissory note payable to order, which alleges 'that the plaintiff at the time he commenced action did not own the promissory note sued upon, and had no right or interest in the same; that his only connection with the same was and is that it was indorsed to him for collection,'--does not state any defense to the action, but clearly shows a cause of action in favor of the plaintiff, and that, while plaintiff did not have the absolute ownership of the note sued upon, he yet had it rightfully in his possession as agent or trustee for collection, and could sue upon the same.

8. If a note be indorsed in blank, the courts never inquire into the right of the plaintiff whether he sues in his own right or as trustee, nor into the right of possession, unless a plea be made of mala fides in the plaintiff's possession.

COUNSEL

Walker & L'Engle, for appellants.

Cooper & Cooper, for appellee.

OPINION

LIDDON J.

Appellee was the plaintiff in the court below, and sued the appellants upon a promissory note. That portion of the declaration necessary to an understanding of the case was as follows: '(1) John S. Driggs, by Cooper & Cooper, his attorneys, sues Archibald McCallum and Johathan C. Greeley, for that whereas the defendant Archibald McCallum, on the 28th day of April, A. D. 1883, made his promissory note in writing, and delivered the same to John S. Sammis, and thereby promised to pay to the order of John S. Sammis five hundred dollars, at the Florida Savings Bank, for value received, twelve months after date thereof; and the said defendant Jonathan C. Greeley then and there, at the time of the making of said note by Archibald McCallum, as aforesaid, and before the delivery of said note to John S. Sammis, as aforesaid, by writing his name on the back of said note (to wit, 'J. C. Greeley,' thereby meaning Jonathan C. Greeley), in consideration of the premises, to wit, the promises and undertakings expressed in and by said note, promised and undertook to pay to the order of John S. Sammis the amount of said note, agreeably to the tenor and effect of the same, and thereby, then and there, became and made himself an original promisor and maker of said note; and the said John S. Sammis afterwards indorsed the same to plaintiff before maturity of said note, whereby the said plaintiff became the holder and payee of said note, by the order and indorsement of said John S. Sammis, as aforesaid, whereof the said Archibald McCallum and the said Jonathan C. Greeley had notice, and then and there, in consideration of the premises, promised to pay the amount of said note to said plaintiff, according to the tenor and effect thereof. (2) And at the time of the making of said promissory note by Archibald McCallum, to wit, on the 28th day of April, A. D. 1883, and before the delivery of said note by the said Archibald McCallum to John S. Sammis, thereby promising to pay five hundred dollars to the order of John S. Sammis twelve months after date, at the Florida Savings Bank, Jonathan C. Greeley wrote his name on the back of said note, to wit, 'J. C. Greeley,' meaning thereby Jonathan C. Greeley, whereby the said Jonathan C. Greeley made himself a party to said note, and undertook and assured its payment according to the tenor and effect of said note, to the holder and payee thereof, and the said note having been then and there delivered by the said Archibald McCallum to the said John S. Sammis, with the name of Jonathan C. Greeley written on the back of said note as aforesaid, the said John S. Sammis indorsed said note generally, and delivered same to plaintiff, who thereby became the holder, indorsee, and payee of said note, the said note being made payable to the order of John S. Sammis, and the said general indorsement of John S. Sammis, accompanied by the delivery of said note, being the order of the said John S. Sammis in the premises, of all which the said defendants, Archibald McCallum and Jonathan C. Greeley, had notice.' The remainder of the declaration alleges the maturity of the note, presentment for payment, nonpayment, and notarial protest and notice. The original note was attached to the declaration, and reads as follows:

'$500. Jacksonville, Fla., Apr. 28th, 1883. Twelve months after date, I promise to pay to the order of John S. Sammis five hundred dollars, at Florida Savings Bank. Value received. Arch'd McCallum. No. 4261. Due -----.'

Indorsed on back: 'J. C. Greeley. John S. Sammis. Jno. S. Driggs.'

The defendants filed a plea, which, omitting formal parts, was as follows: Defendants, 'for plea to plaintiff's declaration, say that the consideration for which the promissory note described in plaintiff's declaration was by them executed has failed.' The plaintiff took issue upon this plea. Afterwards the defendants filed two additional pleas, as follows:

'(2) The defendants, for an additional plea to the plaintiff's declaration, say that the said John S. Driggs did not own the promissory note sued upon at the time he commenced said action, and had no right or interest in the same; that his only connection with said note was and is that it was indorsed to him for collection. (3) And, for a third plea, defendants say that said Greeley indorsed the said note as surety only, and not as maker, as alleged. Walker & L'Engle, Defendants' Attorneys.

'Being sworn, Archibald McCallum says he is a defendant to said action, and that the foregoing pleas are true in substance and fact, to the best of my knowledge and belief. Archibald McCallum.

'Sworn to and subscribed before me, this May 1st, 1890. D. U. Fletcher [Seal.] Notary Public.'

The cause having been referred to Mr. D. U. Fletcher as referee the plaintiff moved before said referee to strike out said additional pleas, alleging that the same were so framed as to prejudice, embarrass, and delay the fair trial of the action. The grounds, as stated in said motion, are as follows: '(1) That the said additional plea marked '2' presents a totally immaterial and irrelevant issue, and is therefore frivolous. (2) That the said additional plea marked '3' is also irrelevant and immaterial at this stage of the case; the evidence as taken showing that said defendant Greeley was a joint maker of the note sued on, under the decision of the supreme court of Florida in the case of Melton v. Brown [25 Fla. 461, 6 So. 211]; and said third plea stating conclusions of law, and not alleging issuable facts showing the relation of said defendant Greeley to said note, either as surety or maker. (3) That the affidavit to said additional pleas is insufficient, and not in accordance with the rule of practice in such case made and provided; the said affidavit being 'to the best of deponent's knowledge and belief,' and therefore not positive in its allegations of the truth of said...