Vinson v. Palmer

• Decision Date: 03 February 1903
• Citation: 45 Fla. 630,34 So. 276
• Parties: VINSON v. PALMER.
• Court: Florida Supreme Court

34 So. 276

45 Fla. 630

VINSON v. PALMER.

Florida Supreme Court, Division A.

February 3, 1903

Error to Circuit Court, Hillsborough County; Barron Phillips Judge.

Action by Thomas Palmer, receiver, against James M. Vinson. Judgment for plaintiff, and defendant brings error. Affirmed on conditions.

Syllabus by the Court

SYLLABUS

1. One suing upon a promissory note, upon its face barred by the statute of limitations, but which the defendant, before the bar of the statute was complete, had again promised to pay need not declare upon the new promise, but may declare upon the original note, and, if the statute of limitations is pleaded, reply the new promise.

2. There was no abuse of discretion in the action of the trial judge in permitting the plaintiff during the trial to amend his declaration to conform to the facts as disclosed by the evidence.

3. The assignee of a promissory note, who is the real party in interest, may sue and recover upon the note, though the assignment was made without indorsement of the note.

4. Because of the fact that our statute gives to the real party in interest the right to sue and recover upon a chose in action, a defendant cannot complain of the action of the court in permitting a note sued upon to be indorsed during the trial in accordance with a previous assignment thereof made to the plaintiff before suit brought.

5. Chapter 4375, p. 140, Acts 1895, which provides that 'every acknowledgment of, or promise to pay a debt barred by the statute of limitations, must be in writing and signed by the party to be charged,' has no application to a promise made before the passage of the act.

6. When, from the record submitted to this court, it cannot be determined whether an amendment was inserted in a proper or an inappropriate place in the original pleading, it will be presumed to have been made at the proper place.

7. When it is obviously the purpose of the maker that the body of a promissory note shall contain the complete promise of payment, and no amount is named therein, the writing does not constitute a note. Marginal figures will be regarded as a memorandum for convenience of reference, and will not cure the omission in the body of the instrument.

8. The crediting upon a promissory note, with the consent of the parties, of an indebtendness of the holder of the note to a partnership of which the maker of the note is a member, with entries thereof upon the books of the holder of the note and of the partnership, operates as a payment upon the note, such as will stop the running of the statute of limitations.

COUNSEL

P. O. Knight and C. C. Whitaker, for plaintiff in error.

C. W Stevens, for defendant in error.

OPINION

MAXWELL, C.

The defendant in error, as receiver of the Bank of Tarpon Springs, brought suit January 13, 1899, against the plaintiff in error, to recover upon three notes, for $500 each, dated July 19, 1890, payable three, six, and nine months respectively, after date, and a note for $86.87, dated July 19, 1893, payable three months after date. Judgment was rendered for the plaintiff, and writ of error sued out by the defendant.

I. The declaration was upon the original notes. The first plea by defendant was of the five-year statute of limitations, to which plaintiff replied promises to pay and partial payments made within five years before the institution of suit. Under the first and eighth assignments of error, the defendant contends that there was error in admitting in evidence the notes sued upon, and rendering judgment therefor, when the declaration fails to allege a subsequent promise to pay said notes, which were, on their face, barred by the statute of limitations, and cites Tate v. Clements, 16 Fla. 339, 26 Am. Rep. 709, in support of his contention that the new promise is the basis of the action, and must be declared on in order that recovery be had thereon. In that case it is stated that the new promise is the contract upon which suit is based, and the cause of action upon which plaintiff must rely for recovery; but no question was there raised as to the pleadings, and the only point involved was whether the promise to pay by one partner, after dissolution of the partnership, would remove the bar of the statute as to the other partner. We have no criticism to make of the ruling of the court that it would not. With respect to the question of pleading, however, where a new promise is relied upon to remove the bar of the statute, the great weight of authority is that, where such promise was made before the statutory bar was complete, the proper practice is to declare upon the original cause of action, and, if the statute of limitations is pleaded, to reply the new promise. Tanner v. Smart, 6 Barn. & Cress. 603; Hurst v. Parker, 1 Barn. & Ald. 92; Upton v. Else, 12 Moore, 303; Irving v. Veitch, 3 M. & W. 90; 13 Ency. Pl. & Pr. 247 et seq.; Harlan v. Bernie, 22 Ark. 217, 76 Am. Dec. 428; Beach v. Baldwin, win, 9 Conn. 476; Newlin v. Duncan, 1 Har. (Del.) 204, 25 Am. Dec. 66; Barrett v. Barrett, 8 Me. 353. Some of these courts hold a different rule where the debt was barred when the new promise was made, in which case they regard such promise as the cause of action, which must be alleged in the declaration. Howe v. Saunders, 38 Me. 350; Rodgers v. Byers, 127 Cal. 528, 60 P. 42; Shackleford v. Douglass, 31 Miss. 95; 13 Ency. Pl. & Pr., supra. But that question is not involved here.

II. Upon the trial of the case it developed that the three notes, for $500 each, had been made to the payee, Safford, as cashier of a partnership of which he was a member, known as the Bank of Tarpon Springs, and not as cashier of the subsequently incorporated bank of that name, as receiver for which the plaintiff sues, and that the notes were afterwards transferred and delivered by such partnership to the bank whose receiver is plaintiff herein. The plaintiff was thereupon permitted, over the objection of defendant, to amend his declaration by alleging such transfer and delivery for value. Under our very liberal practice, no abuse of discretion was shown by the court in permitting such amendment. Burt v. Florida Southern Ry. Co., 43 Fla.339, 31 So. 265.

Under the second, third, sixth, and seventh assignments of error, it is contended that no indorsement of the notes being alleged in the declaration, nor shown to have been made before suit, no recovery thereon could be had by the bank to which they were assigned, or its receiver. Section 981 of the Revised Statutes authorizes suit by the real party in interest, whether the notes were indorsed, or assigned without indorsement. Jordan v. John Ryan Co., 35 Fla. 259, 17 So. 73; Withers v. Sandlin, 36 Fla. 619, text 628, 18 So. 856; Little v. Bradley, 43 Fla.402, 31 South 342.

III. Under the fifth assignment of error, it is urged that the court erred in permitting the indorsement of the notes in question by the payee pending trial. It does not appear, except from the assignment of error, that the ruling complained of was made, though the fact of such indorsement being made is testified to by Safford. But assuming the fact to appear, and to be error, it was not prejudicial to the defendant. As we have seen, the suit was maintainable without the indorsement, and permitting it to be made affected the rights of neither party.

IV. The defendant contends, under the fourth and ninth assignments of error, that chapter 4375, p. 140, Acts 1895, which provides that 'every acknowledgment of, or promise to pay a debt barred by the statute of limitations, must be in writing and signed by the party to be charged,' governs this case and that the proper construction of the act is that it applies to all debts barred at the commencement of suit, whether barred when the promise was made or not. It is unnecessary for us to construe this act, as it has no application to the case. All of the promises and credits relied upon by plaintiff as defeating the bar of the statute occurred before the act was passed. Even if the Legislature had the power to destroy the obligation of an existing valid and binding verbal agreement, a statute will not be construed as retroactive, and as so affecting past transactions, unless such intent on the part of the Legislature is made clearly apparent in the act itself. McCarthy v. Havis, 23 Fla....