Somers v. Florida Pebble Phosphate Co.

• Decision Date: 27 June 1905
• Citation: 39 So. 61,50 Fla. 275
• Parties: SOMERS v. FLORIDA PEBBLE PHOSPHATE CO. et al.
• Court: Florida Supreme Court

39 So. 61

50 Fla. 275

SOMERS v. FLORIDA PEBBLE PHOSPHATE CO. et al.

Florida Supreme Court, Division B.

June 27, 1905

Error to Circuit Court, Osceola County: Minor S. Jones, Judge.

Action by George E. Somers against the Florida Pebble Phosphate Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

While an instrument tested: 'In witness whereof the F. P. P Co. has caused its corporate seal to be hereto affixed and attested by its Secretary, and this promissory note to be signed by its President, [Signed] F. P. P. Co., by F President [with the corporate seal attached]. Attest: M Sec.'--is the bond of said company, it is not necessarily a sealed instrument as to the stockholders who signed their names on the back of the instrument before delivery in order to give credit thereto.

In a joint action against several defendants, some of whom successfully pleaded the statute of limitation, a judgment dismissing the action as to all will not be disturbed.

Where an instrument is executed by a corporation under its seal, in the form of a promissory note, and indorsed by the stockholders, and a suit is brought thereon against the corporation and the indorsers, it is permissible to introduce in evidence the minutes of the corporation, and other contemporaneous facts and circumstances attending the negotiations of the parties in making the contract, in order to arrive at the true intention of the parties in executing the instrument.

COUNSEL Wm. H. Jewell, for plaintiff in error.

Massey & Warlow, for defendants in error.

OPINION

HOCKER J.

On the 15th day of January, A. D. 1903, the plaintiff in error sued the defendants in error, along with E. Nelson Fell, who was a nonresident and not served with process, in an action at law in the circuit court of Osceola county, upon a cause of action in the following words and figures:

'$2025.00. Kissimmee, Fla. June 6th, 1891. On or before two years after date The Florida Pebble Phosphate Company promises to pay to the order of Nat Poyntz two thousand and twenty-five dollars with interest from date until fully paid at the rate of eight per cent. per annum for value received.

'In witness whereof The Florida Pebble Phosphate Company has caused its corporate seal to be hereto affixed and attested by its Secretary, and this promissory note to be signed by its President. [Signed] The Florida Pebble Phosphate Company, by E. Nelson Fell, President. [Corporate Seal.] Attest: W. B. Makinson, Sec.'

On the back thereof are the following words and names: 'Pay to J. B. Poyntz or order. [Signed] Nat Poyntz.' Under this are the signatures, 'J. B. Poyntz, Nat Poyntz.' Written to the right of the foregoing are the following names: E. Nelson Fell, M. Katz, R. E. Rose, E. D. Beggs, and W. B. Makinson. Credits appear on the back of the instrument up to June 5, 1897.

The declaration contained three counts, in substance as follows: The first count sues on the foregoing instrument as a promissory note, and alleges that 'E. Nelson Fell, W. B. Makinson, M. Katz, R. E. Rose, and E. D. Beggs, being then and there the stockholders of said corporation, and to lend their credit to and to aid in negotiating said note, and before delivery to said payee, did place their names on the back of said instrument as joint and several promisors and comakers, and the plaintiff became the holder of said note in due course, for value, and the same is overdue and unpaid, except certain credits shown by indorsement thereon, and the plaintiff claims four thousand dollars.'

The second count treats the instrument sued on as a negotiable bond, and the defendants who signed on the back thereof as joint and several obligors, and is otherwise like the first count.

The third count treats the cause of action as a written instrument under the seal of said corporation, and alleges that 'the plaintiff became the holder and owner of said instrument, for value and before maturity, by assignment, by indorsement, and without notice of any defect therein, and the same has become due and payable, and payments have been duly demanded from said defendants, but they fail, neglect, and refuse to pay the same, and the same is long overdue and unpaid, with interest, except certain amounts shown by indorsement on the copy of said instrument, which is herewith filed.' This count is in other respects like the first.

The Florida Pebble Phosphate Company filed its separate pleas, and the other defendants their joint pleas, all alike, and in substance as follows:

First. To the first count of the declaration, that the cause of action did not accrue within five years before suit.

Second. To the second count, that the said alleged negotiable bond is not their deed.

Third. That the alleged sealed instrument of writing is not their deed.

These pleas were demurred to, and the demurrers overruled; but, as our views of the case will be indicated in this opinion, we think it unnecessary to set them forth specifically.

Issue was joined on the pleas, and the cause submitted to the circuit judge for trial without a jury. The trial judge gave judgment for the defendants. A motion for a new trial was made, alleging error in overruling the demurrers to the pleas, error in admitting in evidence the minutes of the defendant corporation of the adjourned meetings of June 4 and 11, 1891, and because the findings of the court were against the evidence. The plaintiff in error seeks to reverse this judgment.

The bill of exceptions shows that the cause of action hereinbefore copied, with the indorsements thereon, was introduced in evidence by the plaintiff without objection.

The defendants introduced as a witness W. B. Makinson, who testified that he was one of the defendants, and secretary of the defendant corporation. Over the objection of the plaintiff, he was allowed to read from the minutes of the board of directors of the corporation certain extracts of proceedings of the corporation, in substance as follows:

'Kissimmee, Fla., June 4th, 1891. At a special meeting of the board of directors of the Florida Pebble Phosphate Company, a full board being present, the following proceedings were had: * * * Meeting then adjourned until Thursday, June 11th, 1891. [Signed] E. Nelson Fell, Presdt.'

'June 11th, 1891. The board of directors of the Florida Pebble Phosphate Company met pursuant to adjournment, there being present E. N. Fell, Pres., W. B. Makinson, Sec., E. D. Beggs and M. Katz. Mr. E. N. Fell, after an interview with Nat Poyntz reports will take notes for the time of two years indorsed by the original stockholders, instead of giving mortgage notes for one year, said notes to be in the following amounts, viz.: $2,700; $2,025; $2,025; $2,025. On motion of M. Katz seconded by W. B. Makinson that we accept Mr. Nat Poyntz's proposition and give notes for amounts as before mentioned to be endorsed by E. N. Fell, R. E. Rose, M. Katz, E. D. Beggs and W. B. Makinson for the term of two years and before bearing...