Silva v. Robinson

• Decision Date: 23 July 1934
• Citation: 115 Fla. 830,156 So. 280
• Parties: SILVA v. ROBINSON et al.
• Court: Florida Supreme Court

156 So. 280

115 Fla. 830

SILVA v. ROBINSON et al.

Florida Supreme Court, Division A.

July 23, 1934

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by Grace Crum Robinson and C. E. Robinson, her husband against W. C. Silva. To review a judgment in favor of plaintiffs, defendant brings error.

Affirmed.

COUNSEL

Zewadski & Pierce, of Tampa, for plaintiff in error.

Bivens & Huggins, of Tampa, for defendants in error.

OPINION

ELLIS Justice.

The only question presented in this case arises upon the sufficiency of a plea interposed as a defense to an action on a promissory note.

Prior to the date the note was executed and delivered to the plaintiff, the maker, W. C. Silva, had been discharged in bankruptcy proceedings. Before such proceedings in bankruptcy were instituted Silva was indebted to Grace Grum, who when this action was begun had become the wife of C. E. Robinson. The debt amounted to $465, and was evidenced by a promissory note in that sum. It was listed as one of the debts in the bankruptcy proceeding. After the termination of such proceedings and the discharge of Silva, he executed and delivered to Grace Grum another promissory note for the sum of $465. It was dated August 16, 1930, and payable one year after date to the order of the payee.

In January, 1932, Mrs. Grace Crum Robinson and her husband brought an action against Silva in the circuit court for Hillsborough county on the note of August 16, 1930, which when the action was begun was nearly five months past due.

Mr Silva interposed a plea which is the subject of this controversy. It was an amended plea, and a demurrer to it was sustained. The order sustaining the demurrer and entering a default recites that the defendant declined to plead further.

The entry of default for want of a plea in such circumstances was the correct procedure. That eliminates the second assignment of error; besides it was not discussed in plaintiff in error's brief and was therefore abandoned. Southern Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Lake v. Hancock, 29 Fla. 336, 11 So. 97; Bloodworth v. A. H. & F. H. Lippincott, 78 Fla. 261, 82 So. 827; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603; Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297.

The plea averred that the note was 'without any good or valuable consideration therefor.' That averment, standing alone, was insufficient as a defense. See Kline v. Eugene Berninghaus Co., 102 Fla. 362, 135 So. 837.

The facts connected with the transaction must show a want of consideration to support the general averment. Forbes v. Ft. Lauderdale Mercantile Co., 83 Fla. 66, 90 So. 821; Davis v. American Agr. Chemical Co., 87 Fla. 525, 100 So. 741; Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517.

The rule is that a promise to pay debts from which the promisor has been discharged in bankruptcy proceedings is enforceable, though made orally, and no particular form is necessary. Merchants' Protective Ass'n v. Popper, 59 Utah, 470, 204 P. 107, 110; Cameron v. Meador-Pasley Co., 39 Ga.App. 712, 148 S.E. 309; Fonville v. Wichita State Bank & Trust Co., 161 Ark. 93, 255 S.W. 561, 33 A. L. R. 125; Brannan's Negotiable Instruments Law (5th Ed.) 328.

The reasoning supporting that doctrine is aptly stated by Mr. Justice Frick in Merchants' Protective Ass'n v. Popper, supra, as follows:

'When a debt has been discharged in bankruptcy the moral obligation continues precisely the same as though no discharge had been made. The obligation is a continuing one, and continues as long as the debt remains unpaid or is otherwise released. The discharge merely destroys the legal remedy to enforce the

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