Williams v. Peninsular Grocery Co.

• Decision Date: 03 May 1917
• Citation: 73 Fla. 937,75 So. 517
• Parties: WILLIAMS v. PENINSULAR GROCERY CO.
• Court: Florida Supreme Court

75 So. 517

73 Fla. 937

WILLIAMS v. PENINSULAR GROCERY CO.

Florida Supreme Court

May 3, 1917

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Suit by the Peninsular Grocery Company against J. R. Williams. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The statement of an ultimate fact in pleading is not objectionable as being a conclusion of law. An 'ultimate fact' is necessarily a conclusion drawn from intermediate and evidentiary facts.

An allegation in a declaration upon a promissory note that the defendant 'waived demand, protest, and notice of demand nonpayment and protest,' is not the allegation of a conclusion of law.

Pleading evidentiary facts violates a rule which requires the allegation only of ultimate facts, which rule is designed to eliminate long statements of fact in pleading which are often involved and confused.

Under the provisions of section 2940 of the General Statutes of Florida of 1906, neither the validity not the negotiable character of a promissory note is affected by the fact that the instrument bears a seal.

A promisory note executed by a corporation under seal does not thereby become a sealed instrument so as to affect either the negotiability or character of the instrument or the remedy to enforce it.

An indorser without qualification upon a promissory note warrants by his indorsement that the instrument is genuine and in all respects what it purports to be, and engages that upon presentment the note will be paid at maturity according to its tenor.

In an action by the payee of a promissory note against an indorser without qualification, a plea that the note was not executed or delivered by the maker constitutes no defense and is demurrable.

Pleas not responsive to the declaration are demurrable.

Chapter 6486, Acts of 1913, Laws of Floriida, entitled 'An act authorizing the maker or makers of promissory notes or other negotiable instruments and indorsers, sureties, guarantors or other persons secondarily liable thereon to be sued in one and the same action,' does not amend the Negotiable Instruments Law so as to make negotiable instruments joint contracts on the part of the maker and those secondarily liable thereon.

Under the Negotiable Instruments Law a promissory note has the same force and effect, so far as the rules of pleading and evidence are concerned, as a sealed instrument. A consideration is presumed. A plea of failure of consideration which merely avers that there was no consideration for making the note or none for the indorsement is bad as amounting to the general issue which is forbidden in an action on a promissory note.

A special plea which contains no averment of fact that would not be admissible under an issue presented by a plea of payment will be deemed bad on demurrer.

An indorsement of a promissory note is not necessarily a negotiation of it which requires delivery also. A plea which attacks the plaintiff's interest in the subject-matter of an action upon a promissory note which merely avers that the plaintiff had indorsed the note to another will be held bad on demurrer.

No intendment exists in aid of a plea in abatement. It should be certain to that degree which excludes the idea of the existence of those facts necessary to support the action in the tribunal in which it is pending.

A plea in abatement setting up the defendant's right to be sued in the county of his residence, which is different from that in which the action is pending, should contain specific averments as to the place where the cause of action accrued of such degree of certainty as to exclude the idea that the cause of action may have accrued in the county where the action was brought.

A plea in abatement for nonjoinder of defendants which does not aver that the persons not joined as defendants reside within the jurisdiction of the court violates rule 18 of circuit courts in law actions, and will be stricken on motion.

In an action by the holder of a promissory note against an indorser, a plea which merely avers that the plaintiff extended the time of the payment of the note at the maker's request without the knowledge or consent of the defendant is susceptible to the construction that the extension of time was a mere forbearance on the plaintiff's part, and not the result of an agreement binding upon the holder, and is demurrable.

A motion for a compulsory amendment of a plea is addressed to the sound discretion of the court, and the ruling thereon will not be disturbed unless it plainly appears that there was an abuse of judicial discretion.

The order of a trial court allowing amendments to pleadings will not be disturbed where no rule of procedure is violated to the injury of the opposite party, and a sound judicial discretion abused.

The cause of action declared on in a declaration is determined by the allegations of fact contained therein, and not by the conclusions of law alleged, nor the name given to it by the pleader.

Repugnancy in a declaration exists when the matters of substance alleged neutralize each other, or if the statements contained in the cause of action which is attached to and made a part of the declaration are inconsistent with the allegations therein.

Upon demurrer a plea will be tested by its weakest averment or by the most unfavorable construction that may be placed on its averments.

Under the Negotiable Instruments Law (section 3042, General Statutes 1906) an indorser of a negotiable instrument is discharged by any agreement binding upon the holder to extend the time of payment unless made with the indorser's assent, or unless the right of recourse against him is reserved.

An agreement between the holder and maker of a promissory note for an extension of the time of payment of the note should be supported by a valuable consideration.

A plea in an action against one of the indorsers of a promissory note by the holder setting up that the holder agreed with one of the indorsers of the note other than the defendant, for 'some good or valuable consideration,' to extend the time of payment of the note, is bad in not averring that the agreement was made with the first indorser, that each indorsement represented a negotiation of the instrument, and in not excluding the idea that the extension of the time of payment was gratuitously made, or without a valuable consideration.

A motion to strike certain counts in a declaration because they are merely repetitions of a certain other count should be granted, but where such motion is denied by the trial court the order will not constitute harmful error requiring a reversal of the judgment, unless it appears that the complaining party was thereby substantially injured by embarrassment in the preparation of his defense.

When one of the parties in an action at law propounds interrogatories to the opposite party under section 1534 of the General Statutes of Florida, and such interrogatories are not answered as the statute requires, the court may in its discretion, under section 1535 of the General Statutes, upon the application of the party interrogating, require the interrogatories to be answered.

Where a party to an action at law waits until nearly nine months after his plea is due under the rules to propound written interrogatories to the opposite party under section 1534 of the General Statutes, which are not answered, and then makes no effort to compel the opposite party to answer under the provisions of section 1535 of the General Statutes, he will not be heard to object to the cause proceeding to trial upon the ground that the interrogatories have not been answered.

Where pleas to a declaration are filed three or four months prior to a regular term of the court, the case is triable within the meaning of rule 41 of the rules of the circuit courts requiring the clerk before each term to prepare a trial docket upon which he shall enter all cases at law triable at that term.

Rule 33 of the rules of circuit courts, which, among other things, provides that when a rule day occurs in term, and such rule day is the day upon which the defendant is held to file his plea or demurrer to the declaration, any issue of fact arising upon such plea shall not be heard during that term unless by consent of parties, etc., has no application to additional or amended pleas or demurrers which are filed subsequently to the rule day succeeding that on which the declaration is filed.

Where a promissory note provides for the payment of a reasonable attorney's fee if after maturity it should be placed in the hands of an attorney for collection, the trial court is required under the statute to adjudicate the reasonableness of the fee. The judgment of the court as to such attorney's fee will not be disturbed when the record does not disclose the evidence which was before the jury upon such question.

COUNSEL Anderson & Anderson, of Ocala, for plaintiff in error.

R. P. Daniel, Jr., of Jacksonville, for defendant in error.

OPINION

ELLIS J.

The defendant in error, hereinafter referred to as the plaintiff, sued J. R. Williams, hereinafter referred to as the defendant, in the circuit court for Duval county, upon a promissory note alleged to have been made by the Sumter Lumber Company payable to the plaintiff and which was indorsed by the defendant to the plaintiff. The note when due was presented to the maker for payment and dishonored, and suit was begun against the indorser. There was a verdict for the plaintiff upon which judgment was entered. The verdict and judgment included principal, interest, and attorneys' fees. The defendant seeks to reverse the judgment upon writ of error.

The questions presented and argued are mainly...