People's Nat. Bank of Orlando v. Magruder

CourtUnited States State Supreme Court of Florida
Writing for the CourtELLIS, J.
Citation81 So. 440,77 Fla. 235
Decision Date14 March 1919
PartiesPEOPLE'S NAT. BANK OF ORLANDO v. MAGRUDER.

81 So. 440

77 Fla. 235

PEOPLE'S NAT. BANK OF ORLANDO
v.
MAGRUDER.

Florida Supreme Court

March 14, 1919


Error to Circuit Court, Orange County; Jas. W. Perkins, Judge.

Action by the People's National Bank of Orlando against J. B. Magruder, with set-off by defendant. Verdict and judgment for plaintiff for less amount than demanded, and it brings error. Reversed.

Syllabus by the Court

SYLLABUS

In a common-law action, where the plaintiff files replications to defendant's pleas, and goes to trial without issue joined upon such replications, they will be considered waived.

In a case where issue is not joined upon the replications, but evidence is offered in support and denial of the matters set up therein, the jury's finding thereon will not be disturbed, if the evidence submitted was sufficient to support such finding.

Where pleas set up an immaterial issue, and the parties go to trial upon such issue, the trial court should either give judgment for the plaintiff non obstante veredicto or grant a repleader, and, if that course is not followed, an appellate court should reverse the judgment, if for the defendant, although it may not direct a judgment of repleader.

Where the president of a bank contracts for improvements or repairs to be made upon a building, which is occupied by the bank as its place of business, and the board of directors of the bank in session authorizes and empowers the president to cause such improvements or repairs to be made, such contract will be deemed to be the bank's obligation.

Where a landlord makes improvements or changes in a building at the request of a tenant in possession holding under an unexpired lease, in consideration of the latter's oral promise to take a five-year lease of the premises, to begin at the expiration of the present lease, which does not expire within a year from the making of such promise, the landlord may recover in an action at law from the tenant for money paid by the landlord for the tenant at his request, on the latter's refusal to take a five-year lease of the premises at the landlord's request.

COUNSEL [77 Fla. 236] V. S. Starbuck and John M. Cheney, both of Orlando, for plaintiff in error.

Robinson & Beardall and Davis & Giles, all of Orlando, for defendant in error.

OPINION

ELLIS, J.

The People's National Bank of Orlando sued J. B. Magruder upon two promissory notes, each for $800. The notes were made by Magruder, and were payable to the order of the bank. Each [77 Fla. 237] bore interest at the rate of 10 per cent. per annum after maturity, and each provided for the payment of reasonable attorney's fees in case it should become necessary to collect the note through an attorney. One note was dated July 23, 1913, and the other August 15th of the same year. Each note was payable 60 days after date.

Magruder averred in substance in his first [81 So. 441] plea that he owned the building occupied by the plaintiff as its place of business, and the plaintiff was his tenant, and that the lease expired August 15, 1913, the date of the last note; that the note dated July 23, 1913, was given as the result of an oral agreement between the plaintiff and the defendant, whereby it was agreed that, if the defendant would permit the plaintiff to make certain improvements and alterations in the 'rooms and building, by changing the entire front for the express purpose of rendering the same suitable for banking business,' the defendant to pay the expense of such alterations, that the plaintiff would retain and occupy the premises thereafter, and pay an increased rental therefor of $70 per month until a written agreement could be made between the parties whereby the premises were to be leased to the plaintiff for a period of 5 years at $70 per month; that the improvements were made pursuant to such agreement; the cost thereof, amounting to $1,127.50, was charged to Magruder, for which he gave the promissory note sued upon in the first count of the declaration, but that the plaintiff failed and refused to occupy the building and pay the rent agreed upon therefor since October 15, 1913, and refused to enter into the agreement of lease; that the alterations made in the building were of peculiar value to the plaintiff for its banking business, and of no value to the [77 Fla. 238] defendant, and therefore the consideration for the note had failed.

The same plea was interposed to the second count of the declaration, which was based upon the note dated August 15, 1913.

In a third plea, interposed to the two counts of the declaration, the defendant set up the same facts, but admitted that the notes were given for the cost of the alterations in the building, plus $472.50, which latter sum the defendant owed to the plaintiff for money loaned by the plaintiff to the defendant. This plea also averred that the consideration for the two notes had wholly failed.

In a fourth plea to the declaration the defendant offered to set off against the plaintiff's claim the sum of $210, the same being the amount of the rental of the rooms from October 15, 1913, to the date of the institution of the suit, which was January 6, 1914.

By a fifth plea to the declaration the defendant pleaded the same facts that were averred in the first plea, and the further fact that an additional sum of $100 was spent for wiring by him at plaintiff's request under the agreement to occupy the building and enter into a 5-year lease, which made the total cost of the improvements $1,227.50, which the defendant offered to set off against the plaintiff's claim.

A sixth plea averred that the plaintiff was indebted to the defendant in the sum of $130.60 for work done and materials furnished at plaintiff's request, consisting of flooring laid in the banking rooms and moving picture advertisements, which sum the defendant offered to set off against the plaintiff's claim.

[77 Fla. 239] Plaintiff demurred to the first, second, third, and fifth pleas. The matters of law to be argued in support of the demurrer to the first, second, and third pleas were that the oral agreement set up in the pleas was void under the statute of frauds; that a breach of a contract within the statute of frauds does not constitute failure of consideration of a promissory note given in payment of a debt arising collaterally thereto; that the pleas did not show failure of consideration, but showed that the notes were given for money expended in improving defendant's property, and that 'an oral agreement to enter into a written agreement, which would be unenforceable under the statute of frauds is [if] not reduced to writing is likewise unenforceable, and a breach thereof cannot be assigned either as a cause of action or as a ground of defense.'

The matters of law to be argued in support of the demurrer to the fifth plea were that the plea contained no proper matter of set-off; that in the plea the defendant relied upon a breach of a contract unenforceable under the statute of frauds; that a breach of such an agreement could not be...

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13 practice notes
  • Dudley v. Harrison, Mccready & Co.
    • United States
    • United States State Supreme Court of Florida
    • April 16, 1937
    ...up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker, 41 Fla. 232, 26 So. 191, and People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. See, also, Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. 107; Ruff v. G., S. & F. Railway Co., 67 Fla. ......
  • Pillet v. Ershick
    • United States
    • United States State Supreme Court of Florida
    • March 8, 1930
    ...up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker, 41 Fla. 232, 26 So. 191, and People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. See, also, Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. 107; Ruff v. G., S. & F. Railway Co., 67 Fla. ......
  • Weis-patterson Lumber Co. v. King
    • United States
    • United States State Supreme Court of Florida
    • November 27, 1937
    ...912, et seq.; Note, 12 L.R.A.(N.S.) 1021; Gregory v. McNealy, 12 Fla. 578; Hyer v. Vaughn, 18 Fla. 647; People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440; Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.1914D, 1029.' And we also said: 'Assuming for the ......
  • U.S. Gypsum Co. v. Columbia Cas. Co.
    • United States
    • United States State Supreme Court of Florida
    • June 10, 1936
    ...v. French, 37 Fla. 117, 19 So. 165; Cotton States B. & S. Co. v. Florida Ry. Co., 69 Fla. 52, 67 So. 568; People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. Judge Call, of the Fourth Circuit, speaking for the court in Hood v. French, supra, said: 'The parties to the cause and their co......
  • Request a trial to view additional results
13 cases
  • Dudley v. Harrison, Mccready & Co.
    • United States
    • United States State Supreme Court of Florida
    • April 16, 1937
    ...up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker, 41 Fla. 232, 26 So. 191, and People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. See, also, Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. 107; Ruff v. G., S. & F. Railway Co., 67 F......
  • Pillet v. Ershick
    • United States
    • United States State Supreme Court of Florida
    • March 8, 1930
    ...up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker, 41 Fla. 232, 26 So. 191, and People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. See, also, Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. 107; Ruff v. G., S. & F. Railway Co., 67 F......
  • Weis-patterson Lumber Co. v. King
    • United States
    • United States State Supreme Court of Florida
    • November 27, 1937
    ...912, et seq.; Note, 12 L.R.A.(N.S.) 1021; Gregory v. McNealy, 12 Fla. 578; Hyer v. Vaughn, 18 Fla. 647; People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440; Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.1914D, 1029.' And we also said: 'Assuming for the ......
  • U.S. Gypsum Co. v. Columbia Cas. Co.
    • United States
    • United States State Supreme Court of Florida
    • June 10, 1936
    ...French, 37 Fla. 117, 19 So. 165; Cotton States B. & S. Co. v. Florida Ry. Co., 69 Fla. 52, 67 So. 568; People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. Judge Call, of the Fourth Circuit, speaking for the court in Hood v. French, supra, said: 'The parties to the cause and their c......
  • Request a trial to view additional results

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