U.S. Fidelity & Guaranty Co. v. Bennett

CourtUnited States State Supreme Court of Florida
Writing for the CourtBUFORD, J.
Citation119 So. 394,96 Fla. 828
PartiesUNITED STATES FIDELITY & GUARANTY CO. v. BENNETT et al.
Decision Date22 December 1928

119 So. 394

96 Fla. 828

UNITED STATES FIDELITY & GUARANTY CO.
v.
BENNETT et al.

Florida Supreme Court, Division B.

December 22, 1928


Suit by the United States Fidelity & Guaranty Company against S. B. Bennett and others. From an order sustaining in part a demurrer to the bill of complaint, plaintiff appeals.

Affirmed.

Ellis, C.J., and Brown, J., dissenting.

Syllabus by the Court

SYLLABUS

Right to subrogation depends on circumstances and equities of particular case. Doctrine of subrogation is a creature of courts of equity, having for its basis the doing of complete justice between parties without regard to form, and it will be applied or not according to dictates of equity, good conscience, and considerations of public policy, and will be allowed in all cases where equities of case demand it; right thereto depending on facts and circumstances of particular case.

Surety having paid obligee's notes secured by first chattel mortgage without intimating intention to claim subrogation, held, second mortgage security became enhanced to that extent. Where surety on highway construction contractor's bond paid six of the seven notes executed by contractor and secured by first chattel mortgage, without any intimation to holder of second mortgage of intention to claim right of subrogation or to retain lien to secure repayment of notes so paid, held that second mortgage security become enhanced in value to extent of such payments, and such enhancement was a vested right in holder of second mortgage. [119 So. 395]

[96 Fla. 829] Appeal from Circuit Court, Franklin County; J. B. Johnson, judge.

COUNSEL

Parker & Parker, of Tallahassee, for appellant.

R. Don McLeod, Jr., of Apalachicola, for appellees.

OPINION

BUFORD, J.

The appeal in this case is from an order sustaining in part a demurrer to a bill of complaint.

In short, the allegations of the bill of complaint are: That Bennett Construction Company contracted with the state road department of Florida to construct a certain road, and United States Fidelity & Guaranty Company made surety bond for the faithful performance of the contract. Bennett Construction Company failed to perform its contract, and the same was declared forfeited by the state road department, and the surety company was advised that it would be required to make good the conditions of its surety bond. Bennett Construction Company on the 11th day of November, 1926, is alleged to have been indebted to the First National Bank of Atmore, at Atmore, Ala., in the sum of $2,150, and, as evidence of such indebtedness, did make and deliver to the said bank its certain promissory notes, one due February 1, one due March 1, one due April 1, one due May 1, one due June 1, and one due July 1, all in 1927, for the sum of $300 each, and one due August 1, 1927, for $350, and, to secure the payment of these notes, executed a mortgage on certain mules and horses and some other equipment, and thereafter Bennett Construction Company, being indebted to Dothan National Bank of Dothan, Ala., made a second mortgage creating a lien on a part of the same property described in the first...

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9 practice notes
  • Kala Investments, Inc. v. Sklar, No. 86-3004
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...is responsible for the debt is ultimately answerable for its discharge. Id. See United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (1928). The doctrine is then a part of the universe usually spoken of as being inhabited by only indemnity or Because the applicatio......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...and which in equity and good conscience should have been discharged by the latter. United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (Fla.1928); McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. denied, 544 So.2d 200 The policy be......
  • West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc., No. 85-1065
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1986
    ...wherever justice demands its application, irrespective of technical legal rules. See United States Fidelity and Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 Subrogation in equity is not available to a mere volunteer or stranger who, without any duty or obligation to intervene and witho......
  • Timmons v. State
    • United States
    • United States State Supreme Court of Florida
    • January 18, 1929
    ...313; O'Steen v. State, 92 Fla. 1062, 111 So. 725. The contention that the evidence in the record does not expressly show that the offense [119 So. 394] was committed in Marion county is correct, but it does show the defendant was found in possession of the liquor 'on the road between Sharpe......
  • Request a trial to view additional results
10 cases
  • Kala Investments, Inc. v. Sklar, No. 86-3004
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...is responsible for the debt is ultimately answerable for its discharge. Id. See United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (1928). The doctrine is then a part of the universe usually spoken of as being inhabited by only indemnity or Because the application of......
  • Dade County School Bd. v. Radio Station WQBA, Nos. 95-0534
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 1997
    ...and which in equity and good conscience should have been discharged by the latter. United States Fidelity & Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 (Fla.1928); McKenzie Tank Lines, Inc. v. Empire Gas Corp., 538 So.2d 482 (Fla. 1st DCA), rev. denied, 544 So.2d 200 The policy behind......
  • West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc., No. 85-1065
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1986
    ...wherever justice demands its application, irrespective of technical legal rules. See United States Fidelity and Guaranty Co. v. Bennett, 96 Fla. 828, 119 So. 394 Subrogation in equity is not available to a mere volunteer or stranger who, without any duty or obligation to intervene and witho......
  • Timmons v. State
    • United States
    • United States State Supreme Court of Florida
    • January 18, 1929
    ...313; O'Steen v. State, 92 Fla. 1062, 111 So. 725. The contention that the evidence in the record does not expressly show that the offense [119 So. 394] was committed in Marion county is correct, but it does show the defendant was found in possession of the liquor 'on the road between Sharpe......
  • Request a trial to view additional results

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