Springfield Co. v. Ely

• Decision Date: 27 May 1902
• Citation: 32 So. 892,44 Fla. 319
• Parties: SPRINGFIELD CO. v. ELY.
• Court: Florida Supreme Court

32 So. 892

44 Fla. 319

SPRINGFIELD CO. v. ELY.

Florida Supreme Court

May 27, 1902

Appeal from circuit court, Duval county; Rhydon M. Call, judge.

Bill by the Springfield Company against Mary C. Ely. From a decree for defendant, complainant appeals. Reversed.

On June 19, 1897, the appellant filed its original bill of complaint against the appellee in the circuit court of Duval county, to which appellee filed her answer, incorporating therein certain specific grounds of demurrer. There was a separate preliminary hearing of the cause upon the bill and grounds of demurrer incorporated in the answer, whereupon the court made an order adjudging that the demurrer be sustained, and at the same time an order was made giving the complainant leave to file an amended bill, as it might be advised. The original bill required answer under oath, but the amended bill tendered expressly waived a sworn answer. Defendant objected to so much of the amended bill as waived answer under oath on the ground that the original bill required a sworn answer and such an answer had been filed; but the court overruled the objection and permitted the amended bill to be filed as tendered.

The amended bill alleged, in substance, that on the 19th day of November, 1892, the defendant, Mary C. Ely, was then and there the lawful wife of one Henry S. Ely, and was living with her said husband in Jacksonville, Fla.; that on or about said date the said Henry S. Ely proposed to the Southern Savings & Trust Company, a corporation engaged in banking business in Jacksonville, to give his note to said corporation for $5,865.94 in consideration of the transfer to him of certain notes and drafts then held by it, and its retaining him in employment as its secretary and assistant treasurer, and further proposed to secure said note by pledging to said corporation certificates Nos. 31 and 32, for 15 shares each, and Nos. 38, 39, and 66, for 10 shares each of the capital stock of the said Southern Savings & Trust Company; that the said proposition was then and there accepted, and thereupon Henry S. Ely made, executed, and delivered to said corporation an instrument in writing in and by which he promised to pay on demand to said corporation, or order, said sum of $5,865.94; and in and by said instrument of writing he mortgaged and pledged to said corporation, to secure the said indebtedness, the certificates of stock before mentioned. Said instrument was made a part of the bill, and is as follows:

'$5,865.94 B. D. 662. Due 11/19/92.

'Jacksonville, Florida, Nov. 19th, 1892.

'On demand, after date, for value received, I promise to pay the Southern Savings & Trust Company, or order, at said bank, fifty-eight hundred and sixty-five 94/100 dollars, having deposited with said bank, as collateral security for payment of this or any other liability or liabilities of ----- to said bank, due or to become due, or which may be hereafter contracted, the following property, viz., certificates No. 31 & 32, for 15 shares each, and certificates No. 35, 38, 39, and 66, for ten shares each, of the capital stock of the So. Savings & Trust Co., with full power and authority to said bank to sell, assign, transfer, and deliver the whole or any part thereof, or any substitutes therefor, or any additions thereto, at any brokers' board, or at public or private sale, at the option of said bank, or its president or treasurer, or its or their or either of their assigns, on the nonperformance of this promise, or the nonpayment of any of the liabilities above mentioned, or at any time or times thereafter, without advertisement or notice, which are hereby expressly waived; and upon such sale the holder hereof may purchase the whole or any part of such securities discharged from any right of exemption.

'It is also agreed that the present value of securities herewith referred to is $7,000.00, and that, if there should be any change or depreciation in market or other value of the same prior to maturity of this note, the undersigned shall furnish, upon demand made personally or by mail or telegraph to the address of the undersigned, given below, such additional security as will be satisfactory to said bank, or its president or treasurer; and, in case of failure so to do, forthwith then in that case the said obligation shall be due and payable, and the whole or any part or parts of said securities may be sold as hereinbefore provided, and, after deducting all legal or other costs and expenses for collection, sale, and delivery, to apply the residue of the proceeds of such sale or sales so to be made, to pay any, either, or all of said liabilities to said bank, or its assigns, as its president or treasurer, or its or their or either of their assigns, shall deem proper, returning the overplus to the undersigned.

'And the undersigned agrees to be and remain liable to the holder hereof for any deficiency.

Henry S. Ely.

'Address: -----.'

Indersed: 'Pay to the Springfield Co., or order.

'Southern Savings & Trust Co.

'By S. B. Hubbard, Its President.'

It was further alleged that the stock so mortgaged and pledged stood in the name of Henry S. Ely, trustee, but the defendant, Mary C. Ely, was the beneficial owner thereof, it being, as complainant was informed, then the separate property of the said Mary C. Fly, under the constitution and laws of Florida; that upon said 19th day of November, 1892, she executed an instrument in writing in and by which she consented that said Henry S. Ely might use said certificates of stock as collateral security for his note for $5,865.94, and said instrument in writing was delivered to said Southern Savings & Trust Company with the writing above mentioned, and as a part of the transaction. Said instrument was made a part of the bill, and is as follows:

'Jacksonville, Fla., Nov. 19th, 1892.

'I hereby authorize Henry S. Ely to deposit as collateral security for a note of $5,865.94, payable on demand, certificates Nos. 31 for fifteen shares, No. 32 for fifteen shares, No. 35 for ten shares, No. 38 for ten shares, No. 39 for ten shares, and No. 66 for ten shares, respectively, of the capital stock of the Southern Savings & Trust Company. Said shares standing in the name of Henry S. Ely, trustee, but I being the beneficiary thereof.

'Mary C. Ely.'

It was further alleged that upon the delivery of said instruments, denominated, respectively, Exhibits 'A' and 'B,' to said Southern Savings & Trust Company, it did transfer and deliver to said Henry S. Ely said notes and drafts, and did retain said Ely in its employ as secretary and assistant treasurer; that afterwards, to wit, on the 28th of December, 1894, for a valuable consideration, said Exhibit A was assigned to complainant (the Springfield Company), and said Exhibits A and B delivered to it, and that it was the sole owner thereof.

The bill further alleged that on February 26, 1894, the bonds of matrimony previously existing between Henry S. and Mary C. Ely were dissolved by the decree of the circuit court of Duval county; that afterwards, to wit, on March 27, 1895, under and in pursuance of an agreement entered into between complainant, defendant, and the Southern Savings & Trust Company, the certificates of stock mentioned in Exhibits A and B were surrendered up and canceled on the books of the corporation, and in lieu thereof there was issued to and in the name of the said Mary C. Ely by the said Southern Savings & Trust Company certificate No. 34 for 23 shares of its capital stock, and the said Springfield Company issued to and in the name of said Mary C. Ely certificate No. 117 for 47 shares of its capital stock, and thereupon the said Mary C. Ely executed assignments in blank indorsed on the back of each of said certificates, and delivered the same to the proper officers of your orator, to be held in lieu of the certificates of stock mentioned in Exhibit A and in Exhibit B as surety for the indebtedness therein mentioned, in place of the surrendered certificates of stock. Copies of the certificates, with their indorsements, were made a part of the bill.

It was then alleged that nothing had ever been paid on the indebtedness mentioned in and evidenced by Exhibit A; that there had been a demand for payment on May 26, 1897, at the place where Exhibit A was payable; and that Henry S. Ely was beyond the limits of the state of Florida, and out of the jurisdiction of the court, and could not be reached by its process.

The bill prayed that the stock might be sold to satisfy the amount of indebtedness found to be due upon an accounting.

Defendant demurred to the amended bill, assigning substantially the following grounds of demurrer: (1) That complainant had not made or stated a case entitling it to the relief prayed, or any relief; (2) that Henry S. Ely was a necessary party; (3) that the original pledge was not evidenced by an instrument in writing executed according to the law respecting conveyances by married women; (4) that Henry S. Ely, in pledging the stock, exceeded the authority given him by the terms of the instrument executed by said Mary C. Ely; (5) that the lien sought to be enforced against the substituted certificate was the lien sought to be created on the original certificates, which was without force or effect; (6) that the original certificates, or copies thereof, were not filed with the bill; (7) that there was no consideration for the pledge of March 27, 1895; (8) that complainant had no valid lien or equity to be enforced; (9) that the amended bill sought to waive answer under oath, after an answer under oath had been put in to the original bill. Upon hearing of the demurrer it was sustained, and the bill dismissed, and from that decree the appeal is prosecuted.

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