W. L. TEDDER, PLAINTIFF IN ERROR,
v.
N. H. GREEN AND C. K. GREEN, DOING BUSINESS AS GREEN BROTHERS, DEFENDANTS IN ERROR
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The Florida Supreme Court reversed a lower court's judgment on demurrer in a promissory note case, finding that the defendant's pleas alleging failure of consideration and the plaintiffs' election to retake the timber constituted a valid defense.
No, the demurrer should have been overruled. The pleas, while not perfectly drawn, sufficiently raised defenses of failure of consideration and estoppel by election, which could be proven.
“Three of the notes on their face stated that they were “to be carried as per contract of this date.””
Establishes a condition or agreement related to the notes.
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Join FLexlaw to unlock all legal intelligenceThe case involved an action on promissory notes where the payees sued the maker. Three notes stated they were to be carried "as per contract of this d…
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[*585] Per Curiam.
In an action on promissory notes brought by the payees against the maker thereof, there was final judment for the plaintiff on demurrer to jileas, and the defendant took writ of error. Three of the notes on their face stated that they were “to be carried as per contract of this date.” Among the pleas held bad on demurrer was one averring that the sole consideration for the notes ivas the purchase price of timber sold under contract by plaintiffs to defendant, the plaintiffs retaining title to the timber till all the notes should be paid off and discharged, and that the plaintiffs did treat the timber as their own and did retake the same, and did after the maturity of the notes enter upon the land and cut, remove and dispose of said timber, thus being, estopped by their election. Other pleas averred failure of consideration and partial failure of consideration. These pleas are not accurately drawn, but a defense may be proven under them.
The demurrer thereto should have been overruled. The verdict in. ancillary attachment proceedings merely found “for the plaintiffs in attachment.”
Judgment reversed.
Browne, C. J., and Taylor, Whitfield and West, J. J., concur. Ellis, J., not j>articij>ating.
Cases With Similar Vibessemantic neighbors from the corpus
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Realty Bond & Share Co. v. Englar, 104 Fla. 329 (Fla. 1932)…s framed, are sufficient for the defense of failure of consideration to be proved under it, and that the Court erred in sustaining the demurrer and in granting the motion to strike it. Winchester vs. Hak, 98 Fla. 1071, 124 So. 812; Tedder vs. Green, 79 Fla. 584; Hammers vs. So. Exp. Company, 80 Fla. 51, [*333] 85 So. 246; McDaniel vs. Harrell, 81 Fla. 66, 87 So. 631; 13 A. L. R. 1333; Dowling vs. Fidelity Mutual Life Ins. Co., 81 Fla. 222, 87 So. 749. Since it appears that the said two notes had matured, i…
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Winchester v. Anton Hak, Jr., 98 Fla. 1071 (Fla. 1929)…0, text 469, 55 So. R. 405; First National Bank of St. Petersburg v. Ulmer, 66 Fla. 68, text 78, 63 So. R. 145; Hammers v. So. Ex. Co., 80 Fla. 51, 85 So. R. 246; Fla. East Coast Ry. Co. v. Chesser, 77 Fla. 57, 80 So. R. 750; Tedder v. Green et al., 79 Fla. 584, 84 So. R. 623; Dowling et al. v. Fid. Mut. Life Ins. Co., 81 Fla. 222, 87 So. R. 749. [*1075] The allegations of the declaration as to attorney fees are ‘1 that in and by said note said defendant agreed to pay reasonable attorney’s fees in case sa…
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Dowling v. the Fid. Mut. Life Ins. Co., 81 Fla. 222 (Fla. 1921)…Fidelity Mutual Life Association v. Dewey, 83 Minn. 389, 86 N. W. Rep. 423, 54 L. R. A. 495, and other like cases; and as such pleas were not' wholly bad for the purpose stated, it was error to sustain the demurrers thereto. Tedder v. Green, [*223] 79 Fla. 584, 84 South. Rep. 623. Writ of error was taken to a final judgmen rendered for the plaintiff. Reversed for appropriate proceedings.…