Voges v. Ward
| Citation | 123 So. 785,98 Fla. 304 |
| Parties | VOGES v. WARD. |
| Decision Date | 31 July 1929 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Dade County; A. J. Rose, Judge.
Action by T. B. C. Voges, trading and doing business under the firm name and style of Voges Motor Company, against Nelson E Ward. Judgment was rendered, allowing defendant damages, and plaintiff brings error.
Reversed and remanded.
Syllabus by the Court
Note bearing notation that it was one of series referred to in conditional sale, chattel mortgage, or lease agreement, held nevertheless negotiable (Comp. Gen. Laws 1927, §§ 6761 6763). Notes containing promise to pay stated sum of money to order of named person, with notation in corner, 'This note is one of a series of twelve notes referred to in conditional sales agreement, chattel mortgage, or lease agreement dated March 4, 1924, executed by the maker hereof covering Bethlehem motor vehicle No. G. N. 25097,' held negotiable as unconditional promise to pay definite sum at determinable future date, within Comp. Gen. Laws 1927, § 6761; notation being merely statement of the transaction which gives rise to the instrument, under section 6763.
Reference in note to some extrinsic agreement, to destroy negotiability, must indicate that paper is burdened with conditions of agreement referred to (Comp. Gen. Laws 1927, §§ 6761, 6763). Reference in bill or note to some extrinsic agreement, in order to destroy negotiability under Comp. Gen Laws 1927, §§ 6761, 6763, must be such as indicates that the paper is to be burdened with the conditions of the agreement referred to.
Mortgagee's assignment of debt carries with it mortgagee's interest in security. Assignment of debt by mortgagee carries with it mortgagee's equitable interest in security, and assignment of part of mortgage debt carries mortgage security pro tanto.
Provision in conditional sales contract, permitting action against buyer to recover debt without waiving right to pursue property, held void. Provision in conditional sales contract permitting personal action against buyer for recovery of debt without waiving right of holder of contract to pursue the property, held void.
Suit on note by indorsee of conditional seller cuts off seller's right to pursue property. Under conditional sales contract permitting negotiation of purchase-money notes, suit against buyer by indorsee or assignee of notes will prevent seller from pursuing the property to the same extent as if he himself had retained note and brought suit thereon.
Neither conditional seller nor his assignee may sue to recover debt and at same time recover possession of property sold. In a conditional sale, seller cannot sue the purchaser on the debt and retain his title to and take back possession of the property, and cannot take property and then sue to recover the debt, and has no power to grant right to another to pursue these inconsistent remedies.
Facts existing when suit is instituted determine right to recover in action at law. As a general rule, right of plaintiff to recover in actions at law must be measured by facts as they exist when the suit is instituted.
Suit brought by conditional seller, after assignment of unmatured notes, under acceleration clause permitting holder of unmatured notes and contract to declare all notes payable on default, was premature. Under conditional sales contract, giving option to 'any holders of the unmatured notes and contract' to declare all notes due and payable on default or breach of covenant, suit instituted by seller as holder of contract and first note on which buyer defaulted was premature, where 11 unmatured notes had been assigned, though seller acquired all the notes by payment before trial.
Contract for sale of truck, providing for seller's retention of title and acceleration of unmatured notes, at option of holder of notes and contract, could be upheld as conditional sales contract (Comp. Gen. Laws 1927, § 5724). Contract for sale of motortruck, providing for retention of title in seller and giving right to holder of unmatured notes and contract to declare notes due and payable on default, and providing that seller might enforce payment of notes without waiving right to take possession of car on default, could be upheld as conditional sales contract, on eliminating provision for alternative remedy of recovering price and taking possession of property, notwithstanding Comp. Gen. Laws 1927, § 5724, providing that bills of sale conveying or selling property for the purpose of securing the payment of money shall be deemed mortgages.
Conditional buyer's recovery in seller's replevin suit was determined by value of buyer's special interest (Comp. Gen. Laws 1927, §§ 5347, 5348). Extent of recovery of value of property by conditional buyer in replevin suit by seller to recover motortruck sold was value of buyer's special interest therein, and could not exceed amount paid by him on the purchase price of the property, under Comp. Gen. Laws 1927, §§ 5347, 5348.
Generally, damages for detention in replevin is interest from date of taking, but may be governed by use value if that exceeds lawful interest. Damages recoverable in replevin are generally the value of the property at time of the unlawful detention, with interest, subject to the exception that damages for detention may be the value of the use of the property, where use value exceeds lawful rate of interest.
Buyer, sued by conditional seller in replevin, could not recover damages for plaintiff's detention, where there was no evidence of value of use of truck to defendant, and his right to let it was restricted. In action by conditional seller to replevy automobile, buyer was not entitled to judgment for damages for wrongful detention, where buyer's right to use truck for hire was restricted, and there was no evidence of the value of the use of the truck to the defendant himself, notwithstanding evidence of rental value.
Unmatured purchasemoney notes, assigned by conditional seller and paid by him after commencement of his replevin suit, were admissible on question of buyer's damages for detention (Comp. Gen. Laws 1927, §§ 5347, 5348). In action by conditional seller to replevy automobile after buyer's default in payment of first note and seller's transfer of remaining unmatured notes, which he paid after commencement of suit, such unmatured notes were admissible on question of defendant's special interest and right to damages for wrongful detention, under Comp. Gen. Laws 1927, §§ 5347, 5348, as showing amount of purchase money which defendant failed to pay and time when plaintiff became entitled to repossession.
Facts transpiring after suit and before verdict, having legitimate bearing on recoverable damages, may be admitted in evidence. Evidence of facts transpiring after suit has been instituted and before verdict may be admitted, where such facts would have legitimate bearing on amount of damages recoverable by the prevailing party.
Snedigar, Miller, McKay & Baya, of Miami, and Marks, Marks & Holt, of Jacksonville, for plaintiff in error.
Price, Price, Neeley & Kehoe, of Miami, for defendant in error.
The writ of error in this case brings up for review from the circuit court of Dade county a judgment in favor of the defendant in an action of replevin.
The plaintiff, T. B. C. Voges, doing business as Voges Motor Company, sold and delivered a Bethlehem motor truck to the defendant, Nelson E. Ward, for $3,936.64, $1,000 of which was paid in cash, the balance being payable in 12 monthly installments, of $244.72 each, evidenced by 12 promissory notes. There was a written contract between the parties entitled a 'Conditional Sale Agreement,' which recited the sale, the price, and the execution of the notes above mentioned, and which provided that the title to said car should remain in the seller until all of said notes and interest, together with costs of collection 'and any judgment which might be rendered upon said notes or any of them,' shall have been paid, and that 'no assignment, negotiation, or extension of said notes or any of them shall in any way be construed as a waiver of these conditions.'
In the contract, the purchaser also agreed to keep the car insured against fire, theft, and collision, for the benefit, in case of loss or damage, first of the seller, then of the purchaser, as their interests might appear.
The remainder of the contract reads as follows:
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First Bank of Marianna v. Havana Canning Co.
...... does not render the note non-negotiable, being merely a. statement of the transaction which gave rise to the. instrument. Voges Motor Co. v. Ward, 98 Fla. 304,. 123 So. 785; Fowler v. Industrial Acceptance Corp.,. 101 Fla. 259, 134 So. 60. The fact that a note retains title. ......
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City of Coral Gables v. Sakolsky
...actions 'the right of a plaintiff to recover must be measured by the facts as they exist when the suit was instituted'. Voges v. Ward, 1929, 98 Fla. 304, 123 So. 785. And the same rule applies to equity proceedings. Meredith v. Long, 1928, 96 Fla. 719, 119 So. 114. See also to the same effe......
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Intertype Corporation v. Pulver
...specific lien, and is not a conveyance of the legal title nor right to possession. Section 5725, Comp. Gen. Laws Fla. 1927; Voges v. Ward, 98 Fla. 304, 123 So. 785. Therefore the relation of conditional vendor and vendee, and of mortgagee and mortgagor, cannot subsist as to the same propert......
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Mutual Finance Co. v. Martin
...the picture, or in any way affect any of the characteristics of the note which give it commercial value. We have so held in Voges v. Ward, 98 Fla. 304, 123 So. 785; Fowler v. Industrial Acceptance Corp., 101 Fla. 259, 134 So. 60; Robertson v. Northern Motor Securities Co., 105 Fla. 644, 142......