Insurance Co. of the South v. Kennedy & Ely Insurance ( 1962 )

CARROLL, Judge

(concurring specially).

I concur in the judgment, and agree that the action was upon an obligation founded on a written instrument and therefore was maintainable within the five-year limitation period, as provided for in § 95.11(3), Fla.Stat., F.S.A.

However, I do not agree that the paragraph of the written agency contract, quoted in the opinion, furnishes a direct basis for the claim asserted by plaintiff. That provision of the contract related to payments and duties other than those directly involved here. Although not spelled out by the particular paragraph, it seems clear that the agent’s right to be reimbursed for premiums returned by it to former policyholders is derived from the agency contract. This right, implied from the relation of the parties as created by the written contract, is as much a part of that contract as any express, term thereof. See McGill v. Cockrell, 88 Fla. 54, 101 So. 199.