Springstead v. Crawfordsville State Bank

• Citation: 63 Fla. 267,57 So. 668
• Parties: SPRINGSTEAD et al. v. CRAWFORDVILLE STATE BANK.
• Decision Date: 05 February 1912
• Court: United States State Supreme Court of Florida

57 So. 668

63 Fla. 267

SPRINGSTEAD et al. v. CRAWFORDVILLE STATE BANK.

Florida Supreme Court

February 5, 1912

Error to Circuit Court, Hernando County; W. S. Bullosk, Judge.

Action by the Crawfordville State Bank against J. W. Springstead and others. Judgment for plaintiff, and defendants bring error. Reversed, with directions.

Syllabus by the Court

SYLLABUS

Where in an action brought by indorsees of a note, there is a plea alleging a failure of consideration for the note, and breach of warranty, of which the indorsees had knowledge at the time of the indorsement to them, the plea is not obnoxious to demurrer because of the failure to allege such knowledge.

Where an action is brought on a joint and several note against all the makers, who appeared and pleaded, and in the midst of the trial the plaintiff elected to dismiss the action as to two of the makers, the effect of this action was to discontinue the suit as to all the defendants, because the plaintiff might have sued them all jointly, or each of them severally but might not sue a part of them jointly, under the circumstances mentioned.

COUNSEL Davant & Davant, for plaintiffs in error.

F. B Coogler, for defendant in error.

OPINION

HOCKER J.

In 1908 the defendant in error as plaintiff brought an action of assumpsit in the circuit court of Hernando county against the plaintiffs in error as defendants, and M. P. Mickler and H. C. Mickler filing the following amended declaration:

'The Crawfordville State Bank, a corporation organized and existing under the laws of the state of Indiana, plaintiff, by its undersigned attorney, sues J. W. Springstead, O. W. Rice, A. F. Burns, J. C. Burwell, S.E. Mickler, W. A. Fulton, W. P. Tucker, W. Hop Smith, M. P. Mickler, H. C. Mickler, and W. R. Ayers, defendants, in an action of assumpsit, and thereupon plaintiff alleges and says:

'That the defendants did on the 22d day of January, A. D. 1906, according to the custom and usage of merchants, make their certain promissory note in writing, commonly called a negotiable note, the date whereof is the day, month, and year aforesaid, and then delivered the same to J. Crouch & Son, a copartnership composed of Jeptha Crouch and George Roland Crouch, whereby for value received they jointly and severally promised and agreed to pay to the said J. Crouch & Son or their order, on October 1, 1907, after date thereof, the sum of one thousand ($1,000.00) dollars, together with interest from date at the rate of 8 per cent. per annum until paid, interest payable annually, together with reasonable attorney's fees if suit was brought on said note, payable at Hernando State Bank of Brooksville, Fla. And the plaintiff says that the said J. Crouch & Son afterwards and before maturity indorsed and delivered the said note in due course, while the same was unpaid, to the said plaintiff. And the said plaintiff avers that afterwards, to wit, on the 1st day of October, 1907, when, according to the tenor and effect thereof, the said note became due and payable, the same was presented and shown for payment at the Hernando State Bank of Brooksville, Florida, but the said defendants did not, nor did either of them, nor did any other person, then pay the sum of $1,000 and interest as specified in the said note. Wherefore plaintiff brings this suit and claims the sum of one thousand dollars with interest thereon at the rate of 8 per cent. per annum from the 22d day of January, 1906, until paid, interest payable annually, together with a reasonable attorney's fee for bringing this suit. Yet the said defendants, although often requested, have not, nor has either of them, as yet paid the plaintiff the said sum of $1,000 as above demanded, or any part thereof, or the interest thereon as aforesaid, but the same to pay have hitherto wholly neglected and refused, and still do neglect and refuse to pay the same, to the damage of the said plaintiff $2,000.'

After several pleas had been filed and demurrers thereto sustained, the defendants filed the following plea:

'And for amendment to their third plea the defendants say:

'That the note sued on was given by them to J. Crouch & Son in consideration of a certain stock-horse or stallion, to the said defendants sold and delivered by J. Crouch & Son, the payee of the said note, on or about the 22d day of January, 1906, with the contemporaneous agreement and guaranty of the said payee with the said defendants that the said note should be surrendered by the said payees to the said defendants and the said horse taken back by the said payees if less than 60 per cent. of the breeding service of the said stallion during the breeding season next preceding the maturity of the said note should prove effectual impregnation, and the said payees, as part of the contract of sale and consideration of said note, then represented and guaranteed that the said stallion was vigorous, fit, and reliable and capable for breeding purposes in the said ratio of 60 per cent. of general service in breeding; and the said stallion, with full...