Robinson v. Aird
| Decision Date | 30 January 1901 |
| Citation | 29 So. 633,43 Fla. 30 |
| Parties | ROBINSON v. AIRD. |
| Court | Florida Supreme Court |
Error to circuit court, Duval county; Rhydon M. Call, Judge.
Action by Henry G. Aird, receiver of the Dime Savings Bank of Florida, against Elizabeth S. Robinson. Judgment for plaintiff. Defendant brings error. Reversed.
Syllabus by the Court
1. A count in a declaration alleging that a third person executed his certain promissory note, payable to the order of defendant; that defendant indorsed and delivered said note to a certain bank, whereby she promised to pay the bank $100 for attorney's fees in the event the note was not paid at maturity, and was placed in the hands of an attorney for collection; that the note was not paid at maturity, and had been placed in the hands of an attorney for collection,--does not show a liability for attorney's fees on the part of defendant to the bank, or to one claiming through it.
2. An ordinary indorsement of a note does not carry with it an original obligation to pay attorney's fees for collecting the note; and, without notice of its dishonor, the indorser will not be liable upon such indorsement for attorney's fees stipulated in the face of the note to be paid by the maker.
3. To charge a party with notice of the dishonor of a bill or note because notice was given to another person as his agent, it must be shown that it was within the scope of the agent's authority to receive such notice.
4. Where the declaration in an action against an indorser alleges that due notice of the dishonor of the note sued upon was given defendant, and defendant's plea puts this allegation in issue, the burden of proof is upon the plaintiff to prove notice.
5. Depositors in savings banks organized under the laws of this state are creditors of the bank, and have the same rights as depositors in other banks.
6. Section 2193, Rev. St., is directed against certain transactions taking place after the commission of an act of insolvency by banks, or in contemplation thereof, made with a view to the preference of one creditor to another. Where a party owes the bank a note, and also has a credit to his deposit account for deposits made while the bank is solvent and not in contemplation of its insolvency, and the bank officials and such party, after the bank becomes insolvent enter the amount of the balance due such party on his deposit account as a credit on the note, the statute is not violated and such credit may be pleaded as a payment on the note in an action brought to recover on such note by a receiver subsequently appointed.
7. Where a party indebted to a bank after it becomes insolvent purchases from certain depositors their deposits in the bank and the amounts of such deposits so purchased are by the bank officials entered as credits on the debt owing by such party, such payments are invalid, under section 2193, Rev. St., and will not be binding on a receiver subsequently appointed, who sues to recover the debt owing by said party.
8. If the manager of a saving bank is also agent for A., and collects money for A., which he deposits in the bank, and subsequently A. draws upon his agent for the money, and the bank, recognizing its liability for the money so deposited, and in order to pay same, with the consent of the manager, procures B., a debtor to the bank, to assume liability to A. for the draft, agreeing to credit the debt due the bank by B. with the amount paid by B. in settlement of the debt, and B. legally assumes such liability, with the consent of A. and the bank, payable at a future date, such transaction is not prohibited by section 2193, Rev. St., unless it was entered into or made in contemplation of the bank's insolvency or after the commission of an act of insolvency by it, with a view to prefer one creditor to another; and the fact that, before the payment to A. became due, the bank became insolvent, and a receiver was appointed, will not affect B.'s right to claim as a payment upon his debt to the bank, in an action thereon by the receiver, the amount so paid by him to A. in pursuance of the arrangement.
D. U. Fletcher and Wm. H. Harwick, for plaintiff in error.
J. C. Cooper, for defendant in error.
On February 4, 1895, defendant in error began an action of assumpsit against plaintiff in error in the circuit court of Duval county. There are four counts in the declaration, each containing allegations to the effect that on the --- day of -----, A. D. 1894, by a decree of the circuit court of Duval county in a cause wherein the comptroller was complainant, and the Dime Savings Bank, a corporation under the laws of Florida, was defendant, the plaintiff was appointed receiver of all the properties and assets of the bank, and authorized to take possession of same and sue for and collect all outstanding indebtedness due it, and that in accordance with the decree, appointment, and statutes in such cases made and provided, plaintiff thereupon duly qualified as receiver, and the bank transferred and delivered to him all of its properties, assets and accounts. The first count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note, dated July 10, 1893, made by defendant, whereby she promised to pay to the order of the bank $2,919.70 18 months after date, with interest at 10 per cent. per annum after maturity; that by virtue of his appointment, and the statute in such cases provided, the amount of the note became payable to plaintiff in error; that, being so liable, defendant promised to pay the note to plaintiff, but did not pay same.
The second count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note, dated July 10, 1893, made by defendant, whereby she promised to pay to the bank or order $50 for attorney's fees if said note was not paid at maturity, and was placed in the hands of an attorney for collection; that the note was not paid at maturity, and had been placed in the hands of an attorney for collection, whereby said sum of $50 became due and payable by defendant to the bank; that, by virtue of his appointment and the statutes in such cases provided, said amount became due and payable by defendant to plaintiff; and that, being so liable, she promised to pay said sum, but did not pay same.
The third count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note, dated November 14, 1893, made by Roland Woodward, whereby he promised to pay defendant $576.57 six months after date, with interest at 10 per cent. per annum after maturity, and defendant indorsed said note and delivered same to the bank; that the note was presented for payment and was dishonored, whereof defendant had due notice, but did not pay same; that by virtue of his appointment, and the statute in such cases provided, the amount of said note became due and payable to plaintiff; that, being so liable, defendant promised to pay the note to plaintiff, but did not pay same.
The fourth count alleges that the assets of the bank so transferred and delivered to plaintiff included a certain promissory note, dated November 14, 1893, made by Roland Woodward, and payable to the order of defendant, and by defendant indorsed and delivered to the bank, whereby defendant promised to pay said bank the sum of $100 for attorney's fees in the event said note was not paid at maturity, and was placed in the hands of an attorney for collection; that said note was not paid at maturity, and same had been placed in the hands of an attorney for collection, whereby defendant became liable to said bank for said sum of $100; that by virtue of his appointment, and the statute in such cases provided, the said sum of $100 became due and payable by the defendant to plaintiff; and that, being so liable, defendant promised to pay said sum, but did not pay same.
The defendant demurred to the fourth count; the matters of law noted for argument being that the allegations fail to show that defendant had due notice of the nonpayment and dishonor of the note mentioned therein, and fail to show liability on the part of defendant to pay the alleged claim. This demurrer was overruled.
The defendant's pleas upon which plaintiff joined issue are as follows: No. 1, to first and second counts: That before action, and while said bank was solvent, and before plaintiff was appointed receiver of all the property and assets of the bank, and was authorized to take possession of same and sue for and collect all outstanding indebtedness due the bank, as alleged in the declaration, at the request of the bank the defendant discharged and satisfied plaintiff's claim before the same became due by payment to E. I. Robinson, as treasurer of the bank.
No. 2, to second count: That defendant never promised as alleged.
No. 3, to third and fourth counts: That defendant was not duly notified that said note was presented for payment to the maker and was dishonored when the same became due.
No. 4, to fourth count: That defendant never promised as alleged.
On May 14, 1895, the cause was tried. The jury found for plaintiff on each count of the declaration, assessing damages on the first and second counts at $2,963,96, on the third and fourth at $724.23, making a total sum of $3,697.92, for which judgment was duly entered after defendant's motion for a new trial was overruled. From the judgment entered, this writ of error was taken.
I. The first assignment of error relates to the ruling upon the demurrer to the fourth count of the declaration. This court alleges that one Roland Woodward executed his promissory note,...
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