Pruyser v. Johnson, 6698

• Decision Date: 13 April 1966
• Docket Number: No. 6698,6698
• Citation: 185 So.2d 516
• Parties: August G. PRUYSER, Appellant, v. Leroy Frank JOHNSON, Appellee.
• Court: Florida District Court of Appeals

Page 516

185 So.2d 516

August G. PRUYSER, Appellant, v. Leroy Frank JOHNSON, Appellee.

No. 6698.

District Court of Appeal of Florida, Second District.

April 13, 1966.

F. Nelson Pabst, West Palm Beach, for appellant.

Sheppard & Anderson, Fort Myers, for appellee.

PIERCE, Judge.

August G. Pruyser (plaintiff in the Court below) filed complaint against Leroy Frank Johnson (defendant below), alleging an indebtedness due to him by Johnson arising out of a promissory note dated October 20, 1958, signed by Johnson in favor of Florida Growers, Inc., a Florida corporation, in the principal amount of $4,000.00, with interest at the rate of 6% 'from August 24, 1955,' which said note had been subsequently assigned 'for value received without recourse' to Pruyser. Said note called for payments of $1,000.00 on June 15th of each year beginning with 1960 and ending 1963. Alleging that nothing had been paid upon the note Pruyser alleged there was due thereon the total sum of $6,283.21, plus a reasonable attorney's fee. A copy of the note was attached to the complaint, which note contains on the back thereof in handwriting an undated purported assignment, reading:

'For value received we hereby sell, assign and set over this note, without recourse to August G. Pruyser.

Florida Growers, Inc.

a Florida Corporation by

(signature) August G. Pruyser

President.'

Motions to dismiss and for more definite statements were filed by defendant Johnson, whereupon deposition of plaintiff Pruyser was taken, followed by interrogatories propounded to, and answered by, various persons whose names had been mentioned by Pruyser in his deposition. Thereupon defendant Johnson filed a motion for Summary Judgment and, upon hearing, Summary Judgment was entered by the Court in favor of the defendant. The Court held that Pruyser was not a holder in due course nor the legal owner of the promissory note sued upon and that the pleadings and evidentiary matter on file showed no genuine issue to exist as to any material fact, thus entitling defendant Johnson to a Summary Judgment as a matter of law. From such Final Order plaintiff Pruyser has taken this appeal and assigns as error the entry by the trial Court of said Summary Judgment and the findings and conclusions therein made.

Plaintiff Pruyser's testimony upon deposition is an anomaly of contradictions. He identified himself as a dealer in flower bulbs in Delray Beach, Florida, practically retired, but at one time 'the owner of a corporation known as the Florida Growers, Incorporated,' the payee in the promissory note sued upon, and of which company defendant Johnson was an employee. Pruyser stated that about a year before the note was given, which would be sometime around the early fall of 1957, 'we loaned him that money in order to build a rather expensive swimming pool and some improvements on the house,' carport, garage, etc. He said the note was accompanied by a mortgage on Johnson's home, which mortgage had never been recorded, and that while he originally had the mortgage, it had been misplaced or misfiled and he could not find it. He recalled that Florida Growers went into receivership 'probably in September of 1957,' that it 'operated on the receivership for about a year,' and was adjudicated a bankrupt on October 30, 1958. (Federal Court records showed action on receivership on September 25, 1957, and adjudication as a bankrupt on October 20, 1958).

Pruyser's attention was called to the undated endorsement on the back of the note, supra, and when asked how that came about, he replied 'that was accomplished in the office of Mr. DeBoest (his attorney). He asked me--I showed him the note. He asked if the note had been endorsed, so I endorsed that note.' He stated that this took place 'on the 6th of May, 1964' (or 6 years, 8 months after the company went into receivership, and 5 years, 8 months after it was adjudicated a bankrupt). He stated he had bought the note 'in 1958, I believe, from the Receiver * * * the gentleman in West Palm who's now identified as--connected with the real estate firm of--you know the name--Studback (sic) or Hollenbeck, isn't it?' (Appellee's counsel, present at the deposition, clarified the name of the real estate firm as being Studstill & Hollenbeck, Incorporated, 10 South Olive Avenue, West Palm Beach, and the name of the 'gentleman' was identified as R. L. Callaway, who later gave deposition). Pruyser was unable to throw any light on how he failed to get the mortgage at the time he supposedly 'bought' the note. He also was in hopeless contradiction with himself as to just what the deal was with reference to Johnson's home in Hastings, stating variably under oath that 'it was purchased by the company' that 'a party in Hastings bought the house' and 'I believe that Johnson bought it himself.' Going back to the endorsement of the instant note on May 6, 1964, Pruyser admitted that at that time the Company had been dissolved, that he was no longer the President, and that he had 'resigned from the Growers.'

Joseph I. Bogart, Clerk of the U.S. District Court, Southern District of Florida, in Miami, deposed by answers to interrogatories, and identified the receivership and bankruptcy records of Florida Growers, Inc., the dates, adjudications, etc. R.L. Callaway, representative of Studstill & Hollenbeck, realtors, of West Palm Beach, Florida, testified by interrogatories that he had never had any business dealings with Pruyser, and did 'not recall ever having heard his name before'; that neither he nor his firm had ever bought, received, or that he had ever even seen, the instant note, and that this statement was made 'after a thorough check of our records.' John Nicholas, by deposition, said his business was and had been a receiver and trustee in bankruptcy in Miami, that on September 25, 1957, petition for arrangement under Chapter 11 of the Bankruptcy Act was filed on behalf of Florida Growers, Inc., that the company continued in possession of the business until December 23, 1957, at which time he and one C.C. Callaway took over the business as co-receivers until their discharge on June 17, 1958, that the company thereupon resumed operation of the business until September 14, 1958, when the co-receivers were reappointed and resumed operation as Court representatives until the company was adjudicated a bankrupt on October 23, 1958. He remembered the note and mortgage in question as bearing date of October 20, 1958, that the signatures of Johnson and his wife were both on the mortgage but that Johnson's name only was on the note, that he didn't know 'how and when they came into my possession,' that the note was attached to the mortgage, that the mortgage covered certain specifically described land in McClung Subdivision in Hastings, Florida, that he had no personal recollection, and the records of his office did not definitely disclose, just what disposition was made of the note and/or mortgage. He stated he did not remember the name of August Pruyser in connection with the bankruptcy proceedings, nor did he have any contacts with Pruyser as receiver.

The foregoing is a fair re sume of the confused record before this Court. There are only two things deducibly certain therefrom: (1) the meandering of the Johnson note was shrouded in doubt from the time of execution until it showing up in this law suit, and (2) plaintiff Pruyser is definitely not a lawful holder in due course of the note and therefore has no standing to now sue thereon. We are concerned here with only the second observation.

The rule was uniform in this State, through a long line of cases, from 1895 in Wilkinson v. Pensacola & A.R. Co., 35 Fla. 82, 17 So. 71, to 1952 in Fincher v. Fincher, Fla.1952, 55 So.2d 800, that the plaintiff must recover, if at all, on the case made by his complaint, or to put it another way, that no recovery can be had on a cause of action substantially variant from the one alleged.

At first blush, it would seem that this Court departed from that rule in Robbins v. Grace, Fla.App.1958, 103 So.2d...