Citation Numbers: 73 Fla. 142
Judges: Whitfield
Filed Date: 1/26/1917
Status: Precedential
Modified Date: 9/22/2021
Charles G. Lee brought an action against W. C. Bass on two promissory notes made payable to M. D. Wilson, R. D. Waring and T. D. Curtis. Bass filed the following amended pleas:
“That the notes sued on are not the notes of this defendant, in this: That this defendant had heretofore be
“That in pursuance of said agreement between this defendant and the said R. D. Waring, as aforesaid, the said R. D. Waring sent one M. D. Wilson to this defendant bearing a request that this defendant sign said notes as accommodation maker and to send thew same to him by the said M. D. AYilson; that he, AYaring, would sign them as principal maker and use them in retiring and discharging the amount due upon said over due notes, upon which this defendant was liable as endorser, as aforesaid. And this defendant did sign the said notes in blank, and upon
“Wherefore, the plaintiff and his assignor, took said notes with notice of their incompleteness and of irregularities appearing upon the face thereof.”
SECOND.
And for further plea, this defendant says:
“That the plaintiff and his assignor took said notes with notice of incompleteness and irregularities-appearing on the face thereof, and that said notes being- incomplete were attempted to be negotiated without authority from or the cori'sent of this defendant.”
“And now on the 15th day of April, A. D. 19x6, come the plaintiff by his attorneys Kribbs & Steed, and moves for a final judgment, and produces the original notes sued upon and mentioned in his declaration; and the Clerk having ascertained that there is due the plaintiff for principal $981.82, and for interest $45.80, and for attorney’s fee $98.18; and an order of the Judge to enter final judgment having been received and duly filed; therefore it is considered by the court that the plaintiff, the said Charles G. Lee, do have and r¿cover of and from the defendant, the said W. C. Bass the sum of $1,125.80 damages, and costs which are now here taxed at $4.02, and that the plaintiff do have execution thereof.
“J. L. Overstreet, Clerk,
“By James M. Johnson, Deputy.
“Recorded in Final Judgment Book No. 1, page 115.”
On writ of error taken by the defendant it is contended that there was error in sustaining the demurrer to the amended pleas and in directing the clerk to enter final judgment.
Section 2959 General Statutes of 1906, is as follows:
“Where an incomplete instrument has not been delivered it will not, if completed and negotiated, without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.”
As the plea expressly refers to “the delivery of the partially executed notes,” in stating the circumstances under which the defendant signed the note, the above quoted statute is not applicable. The plea does not aver that the holder of the notes knew of the circumstances of
The plea avers the delivery of the notes by Bass to Waring through M. D. Wilson, the payee, pursuant to an agreement between Bass and Waring, but it does not aver that the plaintiff holder of the notes knew of the alleged- agreement and the notes as set out in the transcript does not appear to be so incomplete or irregular on their face as to affect their validity, or to put the holder on notice of an agreement affecting the notes. This being so, the pleas were subject to demurrer. The entry of the judgment by the clerk pursuant to the order of the judge, was in accordance with law. McGee v. Ancrum, 33 Fla. 499.
The judgment is affirmed.
Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur. '