MAYFLOWER, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CARL SUSKIND, APPELLEE
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Mayflower appeals a judgment on a promissory note where the trial court granted judgment on the pleadings, improperly dismissing Mayflower's affirmative defense of want of consideration. The appellate court reverses, holding that while a plaintiff need not prove consideration unless impeached by a sworn denial, a defendant may assert want of consideration as an unsworn affirmative defense and bear the burden of proving it by preponderance of evidence.
A defendant may assert want of consideration as an affirmative defense in an unsworn answer and assume the burden of establishing such defense by a preponderance of the evidence. Section 52.08, Florida Statutes, relieves the plaintiff of proving consideration only when confronted by a sworn denial, but does not deprive the defendant of asserting want of consideration as an affirmative defense in unsworn form.
“Section 52.08, Fla.Stat, F.S. A., relieves the plaintiff in such an action of the burden of proving consideration except when confronted by a sworn denial thereof, but there is nothing in the statute which deprives a defendant from asserting want of consideration as an affirmative defense (by an answer not under oath) and assuming the burden of establishing such affirmative defense by a preponderance of the evidence.”
Establishes the correct interpretation of section 52.08: it does not require want of consideration defenses to be sworn to.
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Join FLexlaw to unlock all legal intelligenceMayflower was sued on a promissory note by Suskind for $13,175.13 plus attorney's fees and costs. Mayflower's answer included a counterclaim asserting…
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Appellant, who was defendant below, seeks reversal of a judgment on a promissory note, which was entered against it in the amount of $13,175.13 plus attorney’s fees and costs in the circuit court in Dade County.
The defendant’s answer included a counterclaim asserting want of consideration. That defense, mistakenly included in the counterclaim, was entitled to be treated as though it had properly been set forth in the answer as an affirmative defense.1
The trial court granted plaintiff’s motion for judgment on the pleadings as to liability, *395with the resultant effect of disregarding and eliminating the affirmative defense of want, or failure of consideration. That was done on the theory that section 52.08, Fla. Stat., F.S.A., which provides that in such a suit on a note the plaintiff is not required to prove consideration as a part of his affirmative case “unless the same shall be impeached by the defendant under oath,” operated to require want of consideration where asserted by defendant as an affirmative defense to be in the form of a sworn answer or defense. The trial judge concluded that if the defense of want of consideration was not sworn to it could not be availed of.
In so holding the learned trial judge was in error. Section 52.08, Fla.Stat, F.S. A., relieves the plaintiff in such an action of the burden of proving consideration except when confronted by a sworn denial thereof, but there is nothing in the statute which deprives a defendant from asserting want of consideration as an affirmative defense (by an answer not under oath) and assuming the burden of establishing such affirmative defense by a preponderance of the evidence. See Towles v. Azar, 112 Fla. 405, 150 So. 734.
Thus the pleadings presented an issue relating to consideration on which the defendant had the burden of establishing a want of consideration by a preponderance of the evidence. On that record, judgment on the pleadings was improper. See Paradise Pools, Inc. v. Genauer, Fla.App.1958, 104 So.2d 860. Holding as we do, there is no need now to rule on other assignments of error. The judgment is reversed and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
HORTON- and PEARSON, JJ., concur.
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Miami Gray Line Boats, Inc. v. Madison Sales Corp., 195 So. 2d 31 (Fla. 3d DCA 1967)…PER CURIAM. Affirmed. See: Mayflower, Inc. v. Suskind, Fla.App.1959, 112 So. 2d 394; Southeastern Sales & Service Co. v. T. T. Watson, Inc., Fla.App.1965, 172 So. 2d 239;. Wise v. Quina, Fla.App.1965, 174 So. 2d 590; Jackson Grain Company v. Kemp, Fla.App.1965, 177 So. 2d 513; 25 Fla.Jur., Pleadings, § 80.…
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Miami Gray Line Boats, Inc. v. Dade Cnty., 195 So. 2d 47 (Fla. 3d DCA 1967)…PER CURIAM. Affirmed. See: Mayflower, Inc. v. Suskind, Fla.App.1959, 112 So. 2d 394; Southeastern Sales & Service Co. v. T. T. Watson, Inc., Fla.App.1965, 172 So. 2d 239; Wise v. Quina, Fla.App.1965, 174 So. 2d 590; Jackson Grain Company v. Kemp, Fla.App.1965, 177 So. 2d 513; 25 Fla.Jur., Pleadings, § 80.…
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Barentine v. Clements, 328 So. 2d 878 (Fla. 2d DCA 1976)…f establishing by a preponderance of the evidence. Their allegation that the extension agreement was executed for valuable consideration raised an issue of fact that precluded a judgment on the pleadings. See Mayflower v. Suskind, Fla.App.3rd, 1959, 112 So. 2d 394. Appellees are, of course, free to utilize the various means of discovery at their disposal and seek a summary judgment. REVERSED and REMANDED for further proceedings consistent with this opinion. McNULTY, C. j., and SCHEB, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Paradise Pools, Inc. v. Genauer, 104 So. 2d 860 (Fla. 3d DCA 1958)
- Towles v. Azar, 112 Fla. 405 (Fla. 1933)