Odlin v. Stuckey

• Citation: 80 So. 291,76 Fla. 42
• Parties: ODLIN v. STUCKEY et al.
• Decision Date: 25 June 1918
• Court: Florida Supreme Court

80 So. 291

76 Fla. 42

ODLIN v. STUCKEY et al.

Florida Supreme Court

June 25, 1918

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by A. P. Stuckey and Pickett T. Simonton, as executors of Frank Simonton, deceased, against Arthur F. Odlin. Judgment for plaintiffs, and defendant brings error. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

A ground of demurrer to a pleading, which is so general as to amount merely to a repetition of the demurrer that the pleading is bad in substance, does not comply with the statutory requirements that the substantial matters of law intended to be argued shall be stated.

A plea to a declaration upon a promissory note that the consideration for the note was the promise of the plaintiffs that they would assume and pay certain outstanding promissory notes upon which plaintiffs' testator and the defendant were jointly liable and would release and discharge the defendant from all liability of every kind to the plaintiffs as executors, and especially from liability on account of such notes, and that the plaintiffs had failed and refused to release the defendant from any obligations to the estate represented by plaintiffs who claim that the defendant is equally liable for the indebtedness represented by the said outstanding notes, is valid as a plea of failure of consideration.

COUNSEL N. B. K. Pettingill, of Tampa, for plaintiff in error.

E. B Drumright, of Tampa, for defendants in error.

OPINION

ELLIS J.

The defendants in error brought an action in the circuit court for Hillsborough county against the plaintiff in error upon the promissory note of the latter in favor of the former for the sum of $1,260, payable on demand.

The declaration alleged that the note bore 8 per cent. interest per annum and contained a promise to pay reasonable attorney's fees in the event it became necessary to collect the note through an attorney.

The plaintiff in error interposed the following pleas:

'For a first amended plea defendant says that, prior to the making of said promissory note in said declaration mentioned, to wit, during the lifetime of the said Frank M Simonton, the testator of plaintiffs, defendant signed with the said Frank M. Simonton promissory notes to the amount of many thousands of dollars, whereon defendant appeared as a joint maker with said Simonton, but in fact became a maker for the sole accommodation of said Simonton who received and used the total proceeds of said notes that at or about the date of the making of the promissory note in said declaration mentioned the plaintiffs and defendant had an accounting and arrived at a settlement of al and singular the dealings and transactions between defendant and said Simonton in his lifetime and plaintiffs, as his executors, since his decease, whereby it was determined and agreed upon them that, upon the assumption and payment by plaintiffs of all said notes upon which defendant was accommodation maker with the deceased Simonton as aforesaid, defendant would be indebted to the plaintiffs in the said sum of $1,260; that thereupon defendant, at the request of plaintiffs, signed said promissory note for that amount in said declaration mentioned, and thereby promised to pay the plaintiffs said sum on the date mentioned therein, upon the sole consideration of the promise by the plaintiffs, as executors as aforesaid, then and there made, that they would execute and deliver to this defendant a release and discharge of all liabilities of every kind which were or might be claimed by them, as such executors, against defendant, and especially of all and every liability by virtue of the promissory notes signed by defendant and the deceased Simonton as joint makers as aforesaid, save and except only the promissory note in the declaration mentioned; and that the plaintiffs have since failed and refused to comply with and carry out their said promise and to execute and deliver to defendant any release and discharge as above described, but on the contrary thereof, are now claiming that defendant is equally liable with their said testator for the indebtedness represented by said notes signed jointly by defendant and the deceased Simonton as aforesaid. And so the defendant says that the consideration upon which the said note in said declaration mentioned was made has wholly failed.

'And for a second amended plea defendant says that the plaintiffs, as executors as aforesaid, at the commencement of this suit were and still are indebted to the defendant in the sum of $337.50 for money paid by defendant for the plaintiffs, as executors as aforesaid, at their request and for work and services performed by defendant for plai

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