Wenck v. Insurance Agents Finance Corp.
| Decision Date | 13 January 1958 |
| Docket Number | No. 57-79,57-79 |
| Citation | 99 So.2d 883 |
| Parties | James H. WENCK and John R. Smith, Co-partners, trading and doing business as Wenck Equipment Company, Petitioners, v. INSURANCE AGENTS FINANCE CORPORATION, a Florida corporation, Respondent. |
| Court | Florida District Court of Appeals |
Robertson, McLeod & Spooner, Coral Gables, for petitioners.
Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for respondent.
The petitioners were the plaintiffs in the Civil Court of Record in and for Dade County, Florida. Their complaint alleged usury and sought to recover the statutory penalty on fifteen loans, each evidenced by a note and each loan was set out in a separate court. The defendant moved to dismiss counts three through fifteen upon the ground that it affirmatively appeared the plaintiff borrowed the full face amount of the notes sued upon, and that the alleged payments of interest as set forth in said counts were made at the time of the execution and delivery of said notes and were deducted from the proceeds of the loans evidenced by said notes. Further, that said deductions and payments were made more than two years before institution of this suit. The petitioners agree that the two year period of limitation is applicable. The trial judge (1) dismissed counts three, four and twelve, for that: 'all interest thereon was taken reserved, charged and paid, and the cause of action under said counts accrued, more than two (2) years before the date of the institution of this action,' and (2) dismissed count eight, nine, ten, eleven, thirteen, fourteen and fifteen, for that: 'The effect of each of said counts is to allege and show upon its face that the alleged usurious interest was reversed, charged, and taken by the defendant, and discharged and paid by the plaintiff at the time of the making of the note, more than two (2) years before institution of this action.'
Upon appeal the Circuit Court affirmed the order of dismissal and plaintiff brings the matter here by petition for writ of certiorari. The question presented therefore is: did the Circuit Judge depart from the essential requirements of law by his order of affirmance? The plaintiffs now concede that counts three, four and twelve (enumerated in the first section of the trial judge's order) were properly dismissed. There remains, for our consideration, the counts enumerated in the second section of the trial judge's order. A summary of the essential dates pertaining to these notes is as follows:
1955
Cause of Action Commenced
Oct. 12, 1956.
The respondent urges that in determining whether the period for limitation had run, we must consider that the action was begun on the date an amended complaint was filed. In support of this position it is urged the original complaint did not contain an allegation that the usury was wilfully charged, and therefore, no cause of action was stated until Nov. 9, 1956, when the court permitted an amendment instanter to add the word 'wilful.' See Section 687.04, Fla.Stat., F.S.A. This situation is fully covered by Rule 1.15 subsection (c) Florida Rules of Civil Procedure, 30 F.S.A. We therefore consider that the cause of action commenced on Oct. 12, 1956, the date of the filing of the original pleading setting forth the claim of the party initiating the action. See also Rule 1.2 Fla. Rules of Civil Procedure, 30 F.S.A. This holding is in conformity with the ruling of the trial judge. However, he mistakenly included count 8 in the list of counts dismissed upon the theory that the interest was 'taken' at the time the loan was made. A reference to the note itself, a copy of which is made a part of the count, clearly shows the ruling was an oversight, inasmuch as only 23 months and 12 days elapsed from Nov. 1, 1954, the date of execution and delivery of the note, and Oct. 12, 1956, the date of the commencement of the cause of action, as determined by the judge.
As to counts 9, 10, 11, 13, 14, and 15, it is necessary to determine whether the period of limitation began with the deduction of the charged interest from the face amount of the note at the time the note was signed and the net proceeds paid to the borrower, or began at some later date, either the date of the last installment payment required by the terms of the note or at the date of the final payment made on the note. Although the point has not been directly decided in this state, we do have some help from two Florida cases, Hagan v. Neeb, 105 Fla. 297, 140 So. 916, 148 So. 124, and Yound v. Wilder, Fla.1955, 77 So.2d 604, 48 A.L.R.2d 397.
Hagan v. Neeb, supra, was a suit by the lender to enforce a note and mortgage evidencing a loan to the defendants herein. The borrowers answered pleading usury as provided by sections 4851 and 4852, Revised General Statutes of Fla.1920 (Sections 687.03, and 687.04 Fla.Stat., F.S.A.). The lower court held that a portion of the usury could be doubled and forfeited but also held that the $500 reserved by the lender when the note was executed could not be doubled and forfeited because barred by the statute of limitations. The Supreme Court reversed this latter holding. The pertinent portion of the opinion is as follows [105 Fla. 297, 140 So. 917]:
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General Capital Corp. v. Tel Service Co.
...Young v. Wilder, Fla.1955, 77 So.2d 604, 48 A.L.R.2d 397; Hagan v. Neeb, 1932, 105 Fla. 297, 140 So. 916; Wenck v. Insurance Agents Finance Corporation, Fla.App.1958, 99 So.2d 883. The first piece of commercial paper transmitted to GC by TS under the contract of August 13, 1959, was due and......
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