Welles-kahn Co. v. Klein
| Decision Date | 01 May 1920 |
| Citation | 88 So. 315,81 Fla. 527 |
| Parties | WELLES-KAHN CO. v. KLEIN. |
| Court | Florida Supreme Court |
On Rehearing, April 12, 1921.
Error to Court of Record, Escambia County; C. Moreno Jones, Judge.
Action by the Welles-Kahn Company against Max Klein. Judgment for defendant on demurrer, and plaintiff brings error.
Affirmed on rehearing.
On Rehearing.
Syllabus by the Court
New promise made before cause of action barred need not be in writing. The provisions of section 1717, Gen. St. 1906, 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,' do not apply where the new promise to pay the debt was made before the cause of action was barred by the statute of limitations.
Verbal promise to pay before debt barred avoids statute. A verbal promise to pay a debt before the debt is barred by the statute of limitations will avoid the operation of the statute.
Requirement that new promise be in writing limited to promises after debt barred. Section 1717, Gen. St. 1906, which provides that no new promise should be sufficient to take a case out of the operation of the statute unless it be made in writing confines the limitation to promises made after the debt is barred.
Settlement held not composition in bankruptcy, but with creditors. Where involuntary proceedings in bankruptcy are pending against one, and his creditors sign an agreement to accept a certain percentage of the debt due to each in full settlement, and vote for a composition, and then file a petition in the bankruptcy court setting up the agreement and ask for the discharge of the receiver and restitution of the debtor's property to him, and such petition is granted, and the debtor pays the amount agreed upon to his creditors, but there was no examination in court of the debtor, or at a meeting of his creditors, nor that the court had called a meeting of creditors for allowance of claims, the examination of the bankrupt, and presentation of his estate, no fixing of a date or designation of a place for a hearing, no order of confirmation by the judge, nor the consideration deposited in a place designated by the judge, nor subject to his order nor distributed as directed by him, nor order dismissing the cause, the settlement is not a composition in bankruptcy, but a composition with creditors, which discharges the debtor as to all who share under the composition.
Debtor's promise to pay unpaid balance to creditor must be supported by consideration. A promise by the debtor orally or in writing to pay any one of his creditors who participated in such a composition, the remainder or balance unpaid must be supported by a valid and independent consideration.
John C. Avery and John P. Stokes, both of Pensacola, for plaintiff in error.
Watson & Pasco, of Pensacola, for defendant in error.
The declaration herein is as follows:
A bill of particulars shows items amounting to $4,502.98.
Pleas were filed as follows:
'1. That he never was indebted as alleged.
'2. That the alleged cause of action did not accrue within three years prior to the commencement of this suit.
Issue was joined on the first plea, and special replications were filed to the other two pleas. Some of the replications to the two last pleas were held bad on demurrer, and the other replications on which issue was taken were withdrawn, and the plaintiff not desiring to amend or to reply further, final judgment on demurrer was rendered for the defendant, and the plaintiff took writ of error.
Unless at least one replication to each or the two special pleas was good as against the demurrer thereto which was sustained, the judgment for the defendant was proper.
The second replication to the second plea is:
'That within three years after the accrual of the said cause of action, and within three years before the institution of this suit, the defendant verbally, and for a valuable consideration, promised the plaintiff to pay the said indebtedness.'
The overruling of this replication on demurrer calls for a determination whether the following statute is applicable to cases where the cause of action was not barred when a new promise is made to pay the debt:
'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.' Section 1717, Gen. Stats. 1906, Compiled Laws 1914.
This statute by its terms is applicable to cases in which a debt is 'barred by the statute of limitations,' when the 'acknowledgment of or promise to pay' the debt is made. It does not apply in cases like this where the new promise to pay the debt was made before the cause of action was barred by the statute. See Phifer v. Abbott, 73 Fla. 402, 74 So. 488, 493.
The sixth replication to the third plea is as follows:
'That after the payment by defendant to plaintiff of 25 per cent. as in said plea alleged, the defendant verbally, and for a valuable consideration, promised plaintiff to pay to it the balance of said indebtedness.'
The grounds of demurrer to this replication are that it is a conclusion of law; that it does not show a sufficient consideration in law for the promise; that it is a departure, and that it is insufficient in law. This demurrer having been sustained, the question presented here is whether a new promise 'for a valuable consideration' to pay the balance of the debt is sufficiently alleged. The allegation 'a valuable consideration' may be regarded as a statement of an ultimate fact, and not a conclusion of law. The replication manifestly is not a departure in pleading. The declaration alleges an indebtedness. The plea avers an agreement to accept an acceptance of 25 per cent. of the amount due as a full settlement of the indebtedness. The replication alleges a new promise for a valuable consideration to pay the balance of the indebtedness, made after the payment of 25 per cent. as stated in the plea.
Under the replication proof may be offered to avoid the plea as a defense to the declaration, since the new promise revives the debt not paid. See Trumball v. Tilton, 21 N.H. 128; 12 C.J. 277; 5 R. C. L. 874.
Judgment reversed.
On Rehearing.
The declaration and pleas thereto are set out in full in the first opinion. There were five replications to the second plea, and seven replications to the third plea. There was no issue joined upon the second plea--each replication sought to avoid the effect of that plea by alleging: First, that the defendant within three years after the accrual of the cause of action and within three years before the institution of the suit verbally promised to pay; second, that he promised within that time for a valuable consideration to pay; third that the consideration was forbearance of the plaintiff to sue; fourth, that the defendant was in embarrassed circumstances, in consideration of which plaintiff and defendant agreed that defendant would pay 'twenty-five per cent.' on account and plaintiff would wait until defendant became able to pay the remainder; that the 25 per cent. of the indebtedness was paid leaving the balance sued for; that the payment was made within three years after the accrual of the indebtedness, and within three years thereafter and before the institution of the suit defendant became able to pay the plaintiff; and, fifth, after making the same allegations this replication continued with the further allegation that after the 25 per cent. was paid, the defendant frequently conferred with the plaintiff about the balance due, and promised the plaintiff to pay if the latter would continue his forbearance from suing the defendant, and that the plaintiff did forbear suing until after the expiration of three years.
The first replication to the third plea denied that there was an agreement between plaintiff and the other creditors, as averred in the plea. Issue was joined by defendant on this replication.
The second replication to the third plea contains the allegations which present the real question which the parties desire to submit, and it is set out here in full:
'It never was agreed between plaintiff and the other creditors of defendant and the defendant as in the said plea alleged except that, to wit, on the 7th day of January, 1914, there was pending in the...
To continue reading
Request your trial
-
Major League Baseball v. Morsani
...that are subject to the de novo standard of review."). 5. See generally § 95.11, Fla. Stat. (1993). 6. See generally Welles Kahn Co. v. Klein, 81 Fla. 524, 88 So. 315 (1921) (on rehearing). 7. Id. 8. Section 2.01, Florida Statutes (1991), provides in full: 2.01 Common law and certain statut......
-
Jacksonville American Pub. Co. v. Jacksonville Paper Co.
...be: '1st. That a new promise, though oral, tolls the statute of limitations, if made before the cause of action is barred. (Welles-Kahn Co. v. Klein, 81 Fla. 524, ), and that the plaintiff may declare upon the indebtedness, and, if the statute of limitations is pleaded, reply the new promis......
-
Gerstel v. William Curry's Sons Co.
... ... that an oral promise is sufficient to keep such an obligation ... alive. Welles-Kahn Co. v. Klein, 81 Fla. 524, 88 So ... 315; Jacksonville American Publishing Co. v. Jacksonville ... Paper Co., 143 Fla. 835, 197 So. 672 ... ...
-
Whale Harbor Spa, Inc. v. Wood
...promises made before the cause of action had run will take the cause of action out from the operation of the statute. Welles-Kahn Co. v. Klein, 81 Fla. 524, 527, 88 So. 315; Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672; Gerstel v. William Curry's......