Scott v. National City Bank of Tampa
| Decision Date | 30 November 1931 |
| Citation | 139 So. 370,107 Fla. 818 |
| Parties | SCOTT v. NATIONAL CITY BANK OF TAMPA. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.
Action by Fletcher Scott against the National City Bank of Tampa. To review an order granting a new trial, plaintiff brings error.
Affirmed.
See also, 139 So. 367.
C. W. Lawrence, Jr., and Henry E. Williams, both of Tampa, for plaintiff in error.
McKay Withers & Ramsey, of Tampa, for defendant in error.
Fletcher Scott brought an action against the National City Bank of Tampa for the alleged conversion by the latter of three hundred shares of stock in the Calarence Saunders Corporation, the property of the plaintiff. There were three counts to the declaration, but demurrer to the first and second counts was sustained. As to the third count the defendant pleaded not guilty and by leave of court interposed a plea of set-off in which it was averred that the plaintiff was indebted to the defendant in the sum of $836.36 with accrued interest and attorney's fees in the sum of $150.
The plea avers that the debt arose in the following manner: The Scott Grocery Company and the plaintiff executed to the defendant on October 13, 1927, their joint and several promissory note in the sum of $10,500, due thirty days after date, with interest at the rate of 10 per cent. per annum until paid with costs of collection and reasonable attorney's fees if not paid at maturity; that the plaintiff also indorsed the said note before delivery to the defendant; that on November 1, 1927, the sum of $3,466.14 was paid on the note, on the second day of the same month the sum of $446.92 was paid, on February 13, 1928, the sum of $5,392.15 was paid, on April 12, 1928, the sum of $238.95 and on May 23, 1928, the sum of $119.48 was paid on the note, leaving a balance due of $836.36 with interest on the amount from time to time remaining unpaid after November 12, 1927, the due date of the note; that by reason of the failure of the plaintiff to pay the note the defendant has incurred attorney's fees in the sum of $150.
The plaintiff interposed a replication on equitable grounds to the plea of set-off in which it was averred that the plaintiff was an accommodation party upon the note and received no consideration for signing it which the defendant knew at the time; that on November 10, 1927, the Scott Grocery Company executed to the Adjustment Bureau of the Tampa Association of Credit Men, Inc., an assignment for the benefit of creditors and the trust was accepted by the assignee; that the two first payments on the note mentioned in the plea represented sums of money which the grocery company and the plaintiff had on deposit with the defendant. The second amount stated in the plea of set-off, $446.92, was a sum of money which the plaintiff had on deposit in defendant bank and both were applied by the bank upon the note. That the sum of $5,392.15 mentioned in the plea was derived from the sale of the 300 shares of stock in the Clarence Saunders Corporation which was owned by the plaintiff and which was sold by the defendant without notice to the plaintiff; that defendant then filed with the Adjustment Bureau, assignee, a claim for $1,194.79 instead of a claim for the sum of $7,033.86 which would have included the sum for which the defendant sold the plaintiff's shares of stock and the amount of deposit to the plaintiff's credit which was applied by the bank as the second payment on the note.
The trial of the case resulted in a verdict for the plaintiff in the sum of $5,564, which on defendant's motion was set aside and a new trial ordered, to which order the plaintiff took a writ of error as authorized by the statute.
Neither the declaration, pleas, nor replication recited the terms or conditions contained in the promissory note relating to the bank's authority to sell the three hundred shares of stock for the conversion of which this action was brought. The plea urges as a set-off a sum remaining due upon the note after the application to it of the...
To continue reading
Request your trial
-
Beckwith v. Bailey
... ... Garrett, 109 Fla. 435, 147 So. 857; ... Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196; ... City of ... Co., 95 Fla. 90, 116 So. 23; Luria v. Bank of Coral ... Gables, 106 Fla. 175, 142 So. 901, 143 So. 8; ... Scott v. National City Bank of Tampa, 107 Fla. 818, ... 139 So ... ...
-
Kight v. American Eagle Fire Ins. Co. of New York
... ... Williams, and Edwin ... R. Dickenson, all of Tampa, for plaintiff in error ... Sutton, ... Reeves ... surrounding a certain fire in Ybor City, Tampa, Florida, ... which counsel referred to as the ... Co., 95 Fla. 90, 116 So. 23; Luria v. Bank of Coral ... Gables, 106 Fla. 175, 142 So. 901, 143 So. 8; ... Scott v. National City Bank of Tampa, 107 Fla. 818, ... 139 So ... ...
-
Gulf Coast Title Co. v. Walters
... ... the dissenting opinion of Mr. Justice Buford in Scott v ... National City Bank of Tampa, 107 Fla. 818, 139 So ... ...
-
City of Miami v. Bopp
... ... 44; Huston v. Green, 91 Fla. 434, 107 So ... 368, 108 So. 846; Scott v. National City Bank, 107 ... Fla. 818, 139 So. 370, 142 So. 650, 143 ... ...