Ulmer v. First Nat. Bank

• Decision Date: 09 May 1911
• Citation: 61 Fla. 460,55 So. 405
• Parties: ULMER v. FIRST NAT. BANK OF ST. PETERSBURG.
• Court: Florida Supreme Court

55 So. 405

61 Fla. 460

ULMER v. FIRST NAT. BANK OF ST. PETERSBURG.

Florida Supreme Court, Division A.

May 9, 1911

Error to Circuit Court, Hillsborough County; J. B. Wall, Judge.

Action by the First National Bank of St. Petersburg against M. W Ulmer. Judgment for plaintiff, and defendant brings error. Reversed.

COUNSEL McMullen & McMullen, for plaintiff in error.

E. R Gunby and Wm. Hunter, for defendant in error.

OPINION WHITFIELD, C.J.

The following declaration was filed in the circuit court for Hillsborough county:

'The First National Bank of St. Petersburg, a corporation, by E R. Gunby and William Hunter, its attorneys, sues M. W. Ulmer, for that heretofore, to wit, on the 4th day of March, 1910, the defendant by his promissory note of said date, promised on or before the 4th day of September, 1910, for value received, to pay O. W. Shugars and W. T. Ogden or order, twelve hundred and fifty dollars, with interest from date at 6 per cent. per annum payable at the office of the Bank of Largo, and all costs and a reasonable attorney's fee, if placed in the hands of an attorney for collection, and before the said note fell due the said O. W. Shugars and W. T. Ogden sold the same and indorsed it for value to the plaintiff, and on the 4th day of September, 1910, the said note was duly presented for payment at the Bank of Largo, and that the said M. W. Ulmer failed and refused to pay the same, and thereafter the plaintiff requested the said M. W. Ulmer, defendant, to pay said note, and upon his failure and refusal to do so, placed the same in the hands of the plaintiff's attorneys for collection.

'Whereupon the plaintiff brings this suit and claims two thousand dollars damages, and files a copy of said note, and makes the same a part of this declaration.

'E. R. Gunby, Wm. Hunter,

'Attorneys for Plaintiff.

'Int. 37.50

$1,250.00 1,287.50

'Largo, Fla., Mch. 4, 1910.

'Six months after date I promise to pay to the order of O. W. Shugars and W. T. Ogden twelve hundred and fifty dollars, at the Bank of Largo, Fla., for value received, with interest from date, at the rate of 6% per annum until paid. Now should it become necessary to collect this note through an attorney, either of us, whether maker, security or endorser on this note, hereby agree to pay all costs of such collection including a reasonable attorney's fee. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest for nonpayment of this note.

'M. W. Ulmer.

'Note. No. 7760.

'Due Sept. 4. Notice of protest 9/6, 1910. J. M. Barco, Notary. First National Bank. Collection 22 60 St. Petersburg, Fla.

'Endorsed: 'O. W. Shugars, W. T. Ogden. Pay to the order of any bank or bankers. Prior endorsement guaranteed Aug. 29, 1910. First National Bank of St. Petersburg, Fla. T. A. Chancellor, Cashier.”

To this declaration the defendant pleaded:

'First. That the note sued upon was never the property of Shugars & Ogden, the payees named therein, but that the said Shugars & Ogden were the agents of the Automobile Insurance Company of America, a corporation organized and existing under the laws of the state of Indiana, and that said note was given by this defendant as part of the purchase price of certain shares of the capital stock of the said corporation, and that this was known to the said plaintiff, the First National Bank of St. Petersburg, at the time it attempted to acquire the said note sued upon; and that said contract was executory, the stock not to be delivered until the note was paid, and that at the date of the said note, to wit, the 4th day of March, A. D. 1910, no foreign corporation was permitted to transact business, or acquire, hold, or dispose of property in this state until it had filed in the office of the Secretary of State a duly authenticated copy of its charter, or articles of incorporation and received from the Secretary of State a permit to transact business in this state: and that on the date last aforesaid, to wit, the 4th day of March, A. D. 1910, the date upon which the shares of stock were sold to this defendant and the note aforesaid given, the said the Automobile Insurance Company of America, a corporation, had not complied with the laws of this state, in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter, or articles of incorporation, and had not then received from the said Secretary of State a permit to transact business in this state; and that the said note was executed at St. Petersburg, Florida, where the contract for stock was entered into, and was delivered in said state to said Shugars & Ogden, as agents for the said the Automobile Insurance Company of America, of which facts the plaintiff had full knowledge.

'Wherefore said note is void and unenforceable against this defendant.

'Second. That the note sued upon was made by this defendant to Shugars & Ogden as the agents of the Automobile Insurance Company of America, a corporation organized and existing under the laws of the state of Indiana, as part consideration for a contract on behalf of said corporation to deliver certain shares of the capital stock of said corporation to this defendant, and that this was known to the plaintiff, the First National Bank of St. Petersburg, at the time it attempted to acquire the said note sued upon; and that the said contract was executory, the stock not to be delivered until the note was paid; and that at the date of the said note, to wit, March 4 1910, every contract made by, or on behalf of any foreign corporation affecting its liability, or relating to property within the state of Florida, before such corporation had filed in the office of the Secretary of State an authenticated copy of its charter, or articles of incorporation, and had received from the Secretary of State a permit to transact business in this state, was void on behalf of said corporation and on behalf of its assigns; and that on the date of said note, to wit, March 4, 1910, the date upon which the shares of stock were agreed to be sold to this defendant and the note aforesaid given, the said the Automobile Insurance Company of America, a corporation, had not complied with the laws of this state, in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter, or articles of incorporation, and had not then received from the said Secretary of State a permit to transact business in this state; and the said note was executed in St. Petersburg, Fla., where the pretended contract for the sale of the...