Winchester v. Hak

• Decision Date: 07 December 1929
• Citation: 124 So. 812,98 Fla. 1071
• Parties: WINCHESTER v. HAK.
• Court: Florida Supreme Court

124 So. 812

98 Fla. 1071

WINCHESTER v. HAK.

Florida Supreme Court, Division B.

December 7, 1929

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Action by Anton Hak, Jr., against J. H. Winchester. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Plea so framed that defense may be proved is not demurrable. Where a plea is so framed that a defense may be proven under it, a demurrer thereto should not be sustained. Tedder v Green, 79 Fla. 584, 84 So. 623.

To authorize recovery of attorney's fees, it must be alleged and proved that maker promised to pay fees on contingency which happened and that holder has incurred valid liability for attorney's services. To authorize the recovery of attorney's fees against the maker of a promissory note it must be alleged and proved, not only that the maker promised to pay a fee upon the happening of a stated contingency, and that such contingency has happened, but that the holder of the note has paid or incurred a valid liability for the services of his attorney.

COUNSEL

Van Fleet, Collins & Miller, of St. Petersburg, for plaintiff in error.

Booth & Dickinson, of St. Petersburg, for defendant in error.

OPINION

WHITFIELD P.J.

This is an action by the payee against the maker of a note, which note contains the following: 'On or before May 20, 1928, after date promise to pay to the order of Anton Hak, Jr., at Central National Bank and Trust Company, St. Petersburg, Fla., Nine Hundred and 00/100 Dollars (900.00) for value received, with interest at the rate of ten per cent per annum from date until paid. Including attorneys fees and all costs if collected by an Attorney, or by suit. This note is secured by pledge of the securities mentioned on the reverse hereof, delivered with this note, as collateral security,' etc. And is signed: J. H. Winchester. The defendant pleaded:

'That plaintiff is not the owner of the note in action. That said note was executed by defendant under the following circumstances and upon the following terms and conditions, and not otherwise;

'That at and before the date of said note, one Erle Renwick was indebted to plaintiff in the approximate sum of Three Thousand Dollars ($3,000.00); that it was agreed and understood by and between plaintiff, and said Renwick, and defendant that in consideration of a conveyance by said Renwick to defendant of an undivided three-tenths (3/10) of Lots Twelve (12), Thirteen (13), Fourteen (14), and Fifteen (15) (except twenty feet off of west portion of Lots 12 and 13), E. A. Barnard's Subdivision in City of St. Petersburg, Pinellas County, State of Florida, defendant would pay to plaintiff Nine Hundred Dollars ($900.00) of said debt of Renwick to plaintiff; that pursuant to said agreement, and as evidence of said Nine Hundred Dollars ($900.00) to be paid by defendant as aforesaid, defendant executed the note in action; that upon execution of said note, by agreement between plaintiff and defendant, said note was placed in the trust department of Central National Bank and Trust Company of St. Petersburg, Florida; that it was further understood and agreed by and between plaintiff and defendant that said note would be delivered to plaintiff upon delivery by said Renwick to said bank, of a deed or other paper writing conveying to defendant said undivided three-tenths (3/10) of the property above described; that no interest whatever in said property or in any property, was ever conveyed to or for defendant and defendant never received nor acquired anything of any nature for or in consideration of said note; that said note was never delivered by or for defendant to plaintiff, or to any person for plaintiff; that said note is entirely without consideration.

'Defendant further says that he is informed and believes and on said information and belief alleges that the Nine Hundred Dollars ($900.00) to have been assumed by defendant and paid to plaintiff for an interest in said property, was secured by a lien owned and held by plaintiff upon and against said property; that subsequent to the date of the note in action, plaintiff by suit in this court, foreclosed his said lien, and that plaintiff purchased said property at the sale under a decree therefor in said foreclosure suit and that plaintiff is now the owner of all of said property; that defendant has, at all times, continuously from and including the date of said note, been and now is ready, able and willing and hereby offers to pay to plaintiff said Nine Hundred Dollars ($900.00) upon receipt of a conveyance to him of an undivided three-tenths (3/10) of said property.'

Plaintiff demurred to the plea on grounds that it (1) is vague, indefinite, and uncertain; (2) is inapplicable as a defense to the cause of action; (3) attempts to lay foundation for the introduction of illegal evidence; (4) attempts to alter the terms of a written instrument; (5) is duplicitous; (6) does not set forth sufficient facts to apprise the defendant (plaintiff) of the defense sought to be alleged.

The court sustained the demurrer and rendered the following judgment:

'This cause coming on this day to be heard the record were delivered not to him but to a partner who did not know of the existence of the two separate orders, and petitioner suggests a diminution of the record and prays that a writ of certiorari be awarded directing the lower court to make a further return or supply the said paper that it may be included in the transcript.

'Decrees in equity may be signed by the judge when pronounced, and shall be recorded in the chancery order book of the court without any other enrollment. And no process shall be issued or other proceedings had on any final decree or order until the same shall have been signed and recorded as aforesaid.' Section 4948, Comp. Gen. Laws of Florida.

This statute differs from the original statute only in requiring orders to be recorded in Chancery Order Book instead of the minutes of the court, as required by the original statute. In Wilmott v. Equitable Building & Loan Association, 44 Fla. 815, 33 So. 447, 448, this court in considering the statute before the change was made said: 'This statute is mandatory in terms, and expressly prohibits the issuance of process, or other proceedings on any final decree or order until signature and recordation thereof. It makes signature and recordation a full equivalent of enrollment under the English chancery practice, and limits the enforcement of the decree until those equivalent acts are performed. No court is authorized to disregard the mandatory language of a statute, and it follows that until signature and recordation of a final decree or order no proceedings can be had thereon.'

In Thompkins v. Thompkins, 93 Fla. 844, 112 So. 766, 767, the court in an opinion by Mr. Justice Buford held: 'That a Master in Chancery is without authority to proceed to perform the functions designated in the order of appointment until such order shall have been filed and recorded, as is required by statute.'

In Grimsley et ux. v. Rosenberg, 94 Fla. 673, 114 So. 553 555, this court, adopting an opinion of Thomas, Circuit Judge, in referring to the final decree of foreclosure in that case, says: 'The final decree did not become effective until it was recorded in the chancery...