JAMES J. CERNIGLIA, APPELLANT,
v.
DAVISON CHEMICAL COMPANY, A CORPORATION AND DIVISION OF W. R. GRACE & COMPANY, DULY AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLEE

Fla. 2d DCA | 1962-10-05
No. 2779
ALLEN, A. C. J., and KANNER, J., concur.
145 So. 2d 254 Florida District Court of Appeal, Second District (1962) Positive Treatment
Cited by 16 cases

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Holding

A plaintiff need not specifically allege the place of execution in the complaint if a copy of the note is attached and the note itself indicates the place of execution.


Facts & Procedural History

The plaintiff sued on a promissory note, attaching a copy to the complaint. The note indicated it was executed in Fort Pierce, Florida. The defendant …

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Opinion of the Court
WHITE, Judge.

WHITE, Judge.

Appellant James J. Cerniglia is defendant below in an action to recover the balance due on a $35,000.00 promissory note purportedly executed by him and payable to the order of the plaintiff who is the appellee herein. The defendant brings this interlocutory appeal from an order denying his motion to dismiss the complaint. The motion asserted lack of jurisdiction in that the complaint did not contain allegations sufficiently reflecting proper venue in view of Florida Statutes § 46.05, F.S.A.1

*255A true copy of the note sued upon is attached to the complaint and made a part thereof. The note is conventional in form except for a provision that in the event of default action may be brought against the maker in St. Lucie County, Florida — in which county is located the City of Fort Pierce. In the upper right corner of the note is the following inscription:

“Fort Pierce, Fla.
June 30, 1958.”

The question is: Where the face of a negotiable note indicates its place of execution and a true copy of the note is attached to the complaint in an action thereon, is there a presumption that the note was executed at the place so designated or must the plaintiff in view of- Florida Statutes § 46.05, supra, specifically allege the place of execution in the body of his complaint? In resolving this question we must determine whether or not the statute in question changes the ordinary requisites of pleading in an action on a promissory note; for if the statute does not effect such change, we have no doubt that the instant complaint prima facie shows jurisdiction and is sufficient to withstand the motion to dismiss.

In 7 Am.Jur., Bills and Notes, § 37, the text reads as follows:

“If * * * the instrument in suit bears a statement of the place of its execution, there is a rebuttable presumption that it was executed at that place. Unless other evidence is introduced, the presumption just referred to is conclusive.”

See also Mayer v. Roche, 77 N.J.L. 681, 75 A. 235, 26 L.R.A.(N.S.) 763; 11 C.J.S. Bills and Notes § 657(b and d).

The date specified on the face of a note is somewhat analogous to that of the place. The date on the face of a note is presumed to be correct, and the party claiming the note was given on a different date has the burden of establishing such claim. McQuillan v. Eckerson, 1913, 178 Mich. 281, 144 N.W. 510; National City Bank v. Shelton Electric Company, 1917, 96 Wash. 74, 164 P. 933. See also Fla.Stat., § 674.13, F.S.A., which reads as follows:

"Date of instrument. Where the instrument or an acceptance or any in-dorsement thereon is dated, such date is deemed prima facie to be the true date of the making, drawing, acceptance or indorsement as the case may be.”

Generally in contract actions all that the complaint is required to allege is the execution of the contract, the obligation thereby assumed and the breach. 25 Fla.Jur., Pleadings, § 55. Consistently, Rule 1.10(a), Florida Rules of Civil Procedure, 30 F.S.A., provides:

“All bonds, notes, bills of exchange, contracts, accounts or documents upon which suit may be brought, or a copy thereof * * * shall be incorporated in or attached to the complaint or answer * * *. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts or other instruments in haec verba.” (Emphasis added)

The defendant’s unverified motion merely alleged that the court was without jurisdiction. At the time that the motion was heard there was no proof offered in support *256of the motion. We are impelled to the conclusion that since the copy of the litigated note is attached to the complaint and made a part thereof, it was not necessary that the plaintiff re-plead, as it were, the substance of the note.

Florida Statutes, § 46.05 F.S.A. does provide that venue be laid in the county where the note was signed or where one or more of the makers reside. That section, however, does not require that the complaint in effect re-plead that the attached note was in fact made where indicated. To sustain the contrary view would be to indulge the incongruous presumption that the note was executed in some place other than that recited on its face.

Inasmuch as we affirm for the reasons herein set forth, it is unnecessary to discuss any strictly jurisdictional question pertaining to Florida Statutes, § 46.05, F.S.A.

Affirmed.

ALLEN, A. C. J., and KANNER, J., concur.


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Citator

Cited By

  • Plowden & Roberts, Inc. v. Conway, 192 So. 2d 528 (Fla. 4th DCA 1966)
    …tract and the bonds sued upon, the obligations undertaken by the defendants and their breach and resultant damages, which is generally sufficient to-síate a cause of action for breach of contract. Cerniglia v. Davison Chemical Company, Fla.App.1962, 145 So. 2d 254. The fact that the complaint involves a contract and two bonds all alleged in one count does not render the complaint subject, to a motion to dismiss for failure to state-a cause of action. If two separate claims, are stated in one count the proper…
  • Herman v. BOB Woschnik Constr., Inc., 336 So. 2d 1 (Fla. 4th DCA 1976)
    …chen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975). However, we are of the further opinion that the allegations of the complaint state a cause of action for breach of contract. Mardan, supra; e. g. Cerniglia v. Davison Chemical Company, 145 So. 2d 254 (Fla. 2d DCA 1962). Accordingly, trial court’s order denying defendants’ motion to dismiss is affirmed as modified. MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.…
  • Editorial Cernuda, Inc. v. Editorial Am., S.A., 522 So. 2d 1030 (Fla. 3d DCA 1988)
    …PER CURIAM. We reverse the Order Dismissing Third Amended Complaint With Prejudice as to Count I, the claim of Editorial Cernuda, Inc., for breach of contract. See Cerniglia v. Davison Chemical Co., 145 So. 2d 254 (Fla.2d DCA 1962). As for the other counts, however, we affirm. See Florida East Coast Ry. v. Eno, 99 Fla. 887, 128 So. 622 (1930). Reversed in part; affirmed in part; remanded for further proceedings.…

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