SHERMAN LEA, APPELLANT,
v.
GARY SUHL AND ALVIN COLLINS, APPELLEES
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Lea appealed from a judgment denying recovery on a promissory note and awarding damages to the defendants on a counterclaim for defective silage. The District Court reversed, finding that forebearance to sue and payment of an antecedent obligation constituted sufficient consideration for the note, and that the counterclaim award was unsupported by the evidence.
The court held that both forebearance to sue and payment of an antecedent obligation constitute sufficient consideration for the note. The court also held that the counterclaim award was not supported by evidence and should be limited to the payments made and the actual value of defective silage.
[1] Forbearance to sue is sufficient consideration for a promissory note.
[2] A promissory note given in payment of an antecedent obligation requires no additional consideration.
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Join FLexlaw to unlock all legal intelligence“Forebearance to sue is sufficient consideration for a note.”
Establishes the primary legal principle that Lea's promise not to sue the dairy constituted valid consideration for the note signed by Suhl and Collins.
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Join FLexlaw to unlock all legal intelligenceGaseo Corporation sold silage to Suhl's Dairy for $10,054.95. Lea, a creditor of Gaseo, was assigned the account and negotiated with Suhl and Collins …
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RYDER, Acting Chief Judge.
Lea appeals from a judgment denying him recovery for default on a promissory note and granting damages on appellees’ counterclaim for $3,409.75. We reverse.
Appellant Lea sued appellees Suhl and Collins, alleging default on a promissory note. Appellees asserted failure of consideration and counterclaimed for defective goods. Although no record was made of the proceedings below, the parties reconstructed the following facts pursuant to Florida Rule of Appellate Procedure 9.200(b)(3).
Lea testified that Gaseo Corporation sold silage to Suhl’s Dairy for an agreed price of $10,054.95. Lea testified that he was a creditor of Gaseo, and Gaseo assigned the Suhl’s Dairy account to him in part satisfaction of its debt to Lea. Lea also testified that, subsequent to the assignment, he had negotiations with Suhl, general manager of Suhl’s Dairy, and its accountant, appellee Collins, and as a result of those negotiations, Suhl and Collins agreed to sign a promissory note individually in return for Lea!s promise not to sue the dairy for the amount due. Lea testified he had been paid $900.00 on the note.
Suhl testified that the dairy did receive the amount of silage for which the corporation was billed. He and Collins testified that they signed the note for the bill. Suhl further testified that 172 tons of the silage was defective and was worth $14.00 less than the agreed upon price of $22.00 per ton.
The court entered an order that appellant take nothing and that the appellees take $3,409.75 on their counterclaim.
We regret that the parties below did not elect to have the proceedings reported so that the record could be examined on appeal. We think that if a matter is important enough to the parties to necessitate the expense of litigation, it should also be im portant enough to expend funds for the presence of a court reporter. Such a record would prove valuable upon appeal.
However, the sparse record before us does contain competent substantial evidence to support the fact that appellees assumed the debt and signed the note in return for the forebearance of Lea to sue the dairy. Such was the “testimony” of Lea, and nothing in the “testimony” of appellees is contradictory. Forebearance to sue is sufficient consideration for a note. Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA), cert. denied, 341 So. 2d 1086 (1976); City of Valpariso v. Long, 141 So. 2d 334 (Fla. 1st DCA 1962). Additional ly, appellees gave the note in payment of the dairy’s antecedent obligation, rendering consideration unnecessary. Frank v. Intercontinental Bank of Miami Beach, 372 So. 2d 543 (Fla. 3d DCA 1979). § 673.408, Florida Statutes (1979). We find no evidence in the record before us to support the lower court’s order denying recovery and we thus reverse the order. There is, likewise, no evidence to support the award of appellees’ counterclaim of $3,409.75. The stipulated facts state that appellees made payments of $900.00 on the note. The uncontradicted testimony of Suhl also noted that 172 tons of the silage was defective, with a value of $22.00 less $14.00 per ton. The counterclaim thus only sought damages of $2,408.00 for defective silage. We hold that the facts support an award to appellees of $900.00 in payments made and $2,408.00 on a counterclaim, both to be set off from the face amount of the note.
The order below is REVERSED and the case REMANDED for entry of judgment for appellant on the note with a set-off for appellees of $3,308.00.
DANAHY and SCHOONOVER, JJ., concur.
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Ira Shay & Shalev Corp. v. First Fed. OF Miami, Inc., 429 So. 2d 64 (Fla. 3d DCA 1983)…r appellants and that in return, appellants would not file suit against the appellees for the duration of the trust. It is well settled under Florida law that forbearance .to enforce a legal right may be consideration for an agreement. Lea v. Suhl, 417 So. 2d 1179 (Fla. 2d DCA 1982); Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA), cert. denied, 341 So. 2d 1086 (Fla.1976). Appellants may have stated a theoretical ca…
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Citibank Int'l v. Mercogliano, 574 So. 2d 1190 (Fla. 3d DCA 1991)…Kendrick, 82 Fla. 110, 89 So. 635 (1921); Matey v. Pruitt, 510 So. 2d 351 (Fla. 2d DCA 1987), rev. denied, 518 So. 2d 1276 (Fla.1987) and 520 So. 2d 585 (Fla.1988); Shay v. First Federal of Miami, Inc., 429 So. 2d 64 (Fla. 3d DCA 1983); Lea v. Suhl, 417 So. 2d 1179 (Fla. 2d DCA 1982); Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA 1976), cert. denied, 341 So. 2d 1086 (Fla.1976); City of Valparaiso v. Long, 141 So. 2d…
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Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326 (11th Cir. 1989)…The district court noted that forbearance to enforce a legal right, even if that legal right is of doubtful validity, constitutes consideration sufficient to support a promise or contract. Henderson v. Kendrick, 89 So. 635, 637 (1921); Lea v. Suhl, 417 So. 2d 1179, 1181 (Fla. 2d DCA 1982). The district court found that even assuming that the reconveyance condition was invalid, which it appears to have been, all the parties believed it had at least arguable merit. Therefore, the compromise of the reconveyance…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Uwanawich v. Gaudini, 334 So. 2d 116 (Fla. 3d DCA 1976)
- City OF Valparaiso v. Long, 141 So. 2d 334 (Fla. 1st DCA 1962)
- Alpha Elec. Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981)
- Frank v. Intercontinental Bank OF Miami Beach, 372 So. 2d 543 (Fla. 3d DCA 1979)