R. D. WALKER AND BERTIE WALKER, HIS WIFE, APPELLANTS,
v.
AMERICAN AGRICULTURAL CHEMICAL COMPANY, A CORPORATION, APPELLEE
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The Florida Supreme Court reversed an order striking a paragraph from a defendant's answer in a mortgage foreclosure case, holding that the paragraph alleging an agreement to accept less than the full mortgage debt stated sufficient consideration because the mortgagee might recover more through settlement than foreclosure.
The court held that the paragraph should not be struck on a motion to strike because it cannot be said that the alleged agreement lacked consideration. Since the mortgage was a second mortgage, it is possible that the agreed settlement amount could exceed what would be realized through foreclosure, providing consideration for the agreement.
“it could not be said that the matter contained in the paragraph of the answer sought to be stricken would have no influence upon the final decision as to the subject-matter of the controversy, the particular relief sought, or as to costs in the case”
Establishes the governing rule for reviewing motions to strike pleadings
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Join FLexlaw to unlock all legal intelligenceAmerican Agricultural Chemical Company held a second mortgage on property owned by R.D. Walker and his wife. The company sought to foreclose the mortg…
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West, J.
This case was formerly before this court upon a motion to quash the appeal upon the ground that it was frivolous and was taken against good faith and for the purpose of delay. Walker v. American Agricultural Chemical Co., 83 Fla. 153, 90 South. Rep. 696. A statement of the case sufficient for the purpose of this appeal is contained in the opinion of the court. It has now been readied for consideration upon the merits. The appeal, is from an order striking, upon motion of complainant, one paragraph of the amended answer of defendant mortgagors. In the opinion filed when the case was under consideration upon the motion it was held in effect, in conformity to the well established rule, that it could not be said that the matter contained in the paragraph of the answer sought to be stricken would'have no influence upon the final decision as to the subject-matter of the controversy, the particular relief sought, or as to costs in the ease.
Tt is now urged that there was no consideration for the alleged agreement of complainant to accept a less sum than the mortgage indebtedness in full payment and satisfaction of complainant mortgagee’s claim. It appears, •however, from the mortgage sought to be foreclosed that it is a second‘mortgage upon the próperty and it cannot be said, upon a motion to strike the paragraph of the answer averring this agreement, that there was' no consideration for it, since it may develop upon final hearing that the amount agreed to be paid by defendants in settlement of the claim was more than could have been realized upon a foreclosure of the mortgage, in which event complainant would have derived a benefit and defendants would have suffered detriment if the agreement had been performed by complainant. Henderson v. Kendrick, 82 Fla. 110, 89 South. Rep. 635. Nothing contained in the former opinion was intended to or does militate against the established doctrine that an attorney has no power without express authority to bind his client by compromise of a pending suit.
Nothing more need be said upon the point involved at this stage of the proceeding.
The order appealed from is reversed.
Browne, C. J., and Taylor, Whitfield and Ellis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Henderson v. Kendrick, 82 Fla. 110 (Fla. 1921)
- Walker v. Am. Agric. Chem. Co., 83 Fla. 153 (Fla. 1922)