W. O. BURLESON AND ALLIE BURLESON, HIS WIFE, APPELLANTS,
v.
JESSE FRENCH & SONS PIANO COMPANY, APPELLEE
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The Florida Supreme Court reversed a lower court order denying a demurrer in an action by a piano company seeking to establish lost promissory notes and a contract, and to recover a piano sold on the installment plan. The court held that the piano company had an adequate remedy at law and that the mere loss of the notes and contract did not provide grounds for equitable relief.
The court held that the piano company had an adequate remedy at law through replevin or an action at law where secondary evidence could establish the contents of the lost papers, and therefore the bill did not state a valid cause of action for equitable relief. The court reversed the order denying the demurrer and directed dismissal of the bill.
“The complainant has an adequate remedy at law for the recovery of the instrument in which proof of the contents of the lost papers could be established by secondary evidence.”
Establishes the court's holding that the piano company must pursue a legal remedy rather than an equitable one.
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Join FLexlaw to unlock all legal intelligenceThe appellee piano company sold a piano to Mrs. Burleson on an installment plan, retaining title until payment was complete. When Mrs. Burleson failed…
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Ellis, J.
The appellee sold a piano to Mrs. Burleson upon, the installment plan, retaining by contract the title to the instrument until the notes, which were given for the •deferred payment, should be paid in full. Mrs. Burleson failed to make payment of the notes as they became due and appellee applied to her for return of the instrument. She had removed to Pensacola but wrote the appellee that J. B. Sutton had the instrument and gave the appellee an order on him for its delivery upon the surrender to him of the notes and contract. The appellee forwarded the notes and contract to Sutton and requested him to ship the piano according to shipping directions given him. After some delay he wrote that he had lost the notes and contract and did not have the piano.
The appellee then brought its bill in chancery to establish the lost papers against Mr. and Mrs. Burleson and for a personal decree against Mrs. Burleson for the amount due with interest and attorney’s fees and in default thereof that the defendants be decreed to deliver up the piano to the Jesse French & Sons Piano Company.
A demurrer interposed to the bill upon the ground of a lack of equity, October 6, 1922, was overruled.
An amended demurrer was then filed November 6, 1922. A motion to strike this demurrer was granted January 11, 1923, and defendant' appealed from that interlocutory order on April 2,1923.
The demurrer was not sworn to and was therefore properly stricken from the files. Rule 48 Equity Actions.
The first demurrer, which was overruled October 6, 1922, should have been sustained. The complainant has an adequate remedy at law for the recovery of the instrument in which proof of the contents of the lost papers could be established by secondary evidence. The bare allegations that the notes and contract were lost affords no ground of equitable relief, while a judgment against the makers or a return of the property is relief obtainable at law. See Griffin v. Fries, 23 Fla. 173, 2 South. Rep. 266, 11 Am. St. Rep. 351.
Order reversed with directions to dismiss the bill.
West, C. J., and Whitfield, Terrell and Strijm, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Clore v. Ira S. Drebach, 111 Fla. 788 (Fla. 1933)…ree against the defendants for the amount of the debt to be evidenced by the re-established note. The order appealed from should be affirmed on authority of the opinion and judgment in the case of Burleson, et ux., v. Jesse French & Sons Piano Co., 90 Fla. 16, 104 Sou. 860, and cases there cited. It is so ordered. Affirmed. Davis, C. J., Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.…
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Staiger v. Nat J. Greb and Bessie Bloomberg, 97 So. 2d 494 (Fla. 3d DCA 1957)…to the plaintiff, “including debts evidenced by the re-established lost instruments, together with interest and attorney’s fees provided in said instruments and by law.” The Chancellor in his decree cited Burleson v. Jesse French & Sons Piano Co., 90 Fla. 16, 104 So. 860 and Clore v. Drebach, 111 Fla. 788, 150 So. 135. These cases demonstrate that a bill of complaint to re-establish a lost note and to have a personal decree against the defendant for the amount of the debt to be evidenced by the re-estab…
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State v. Edmunds, 114 Fla. 443 (Fla. 1934)…to re-establish lost papers other than their own records where the moving party shows a right to the relief sought in the equity forum. Griffin [*447] v. Fries, 23 Fla. 173, 2 So. 266, 11 Am. St. Rep. 351; Burleson v. Jesse French & Sons Piano Co., 90 Fla. 16, 104 So. 860. The probate of a will is a proceeding in rem and the original will or a duly re-established copy of it must be produced before a County Judge can order it probated; and the organic and statutory provisions applicable here do not autho…
Authorities Cited
- Griffin v. Fries, 23 Fla. 173 (Fla. 1887)