CLIFTON J. LOCKE ET AL., APPELLANTS,
v.
AETNA ACCEPTANCE CORPORATION, APPELLEE
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The court held that the promissory notes were not negotiable instruments because they were not payable to order or bearer, and thus the plaintiff could not be a holder in due course.
Plaintiff sued on two promissory notes assigned by the seller to the plaintiff. The defendant raised affirmative defenses. The trial court found the n…
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MILLS, Judge.
From the outset, it should be noted that appellant, defendant below, was not represented by counsel at the non jury trial below and appellee, plaintiff below, is not represented by counsel on this appeal.
Defendant appeals from an adverse judgment in a promissory note action. The issue crucial to this appeal is whether the promissory notes were negotiable instruments.
The complaint sought recovery on two promissory notes executed and delivered by defendant to Consumer Food, Inc., who subsequently assigned them to plaintiff. Copies of the notes were attached to the complaint and stated, “Buyer agrees to pay to Seller . . . ”. The answer to the complaint denied the material allegations and alleged several affirmative defenses. At the trial, the trial court held, in effect, that the notes were negotiable instruments and that plaintiff was a holder in due course, therefore, not subject to affirmative defenses.
Section 673.104, Florida Statutes, 1973, provides that to be a negotiable instrument, the writing must be payable to order or to bearer. The notes sued on were payable “to seller” and, therefore, were not negotiable instruments.
Section 673.80S, Florida Statutes, 1973, provides that there can be no holder in due course of an instrument which is not payable to order or to bearer. Under the provisions of Section 673.306, Florida Statutes, 1973, unless a holder in due course, a person takes an instrument subject to all defenses available in an action on a simply contract, as well as the defenses of want or failure of consideration, non-performance of any condition precedent, or non-delivery. Though plaintiff did not qualify as a holder in due course, the trial court refused to consider evidence in support of the defendant’s affirmative defenses. This was error. For the reasons set forth above, the judgment is reversed and this case is remanded for a new trial.
BOYER, Acting C. J., and McCORD, J., concur.
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First Prudential Bank of W. Palm Beach v. Cmty. Fed. Sav. & Loan Ass'n of Riviera Beach, 45 Fla. Supp. 5 (Fla. Cty. Ct. 1976)…is negotiable or non-negotiable is not determined by labeling the writing “non-negotiable” but by its terms. To be negotiable it must be payable to “Order” or “Bearer,” otherwise it is non-negotiable. See also Locke v. Aetna Acceptance Corporation, 309 So. 2d 43 (1st Fla. App. 1975). 4. The certificate of deposit in this case which was admitted as Plaintiff’s Exhibit No. 1 in evidence and which is attached as an exhibit to this order is not payable “to Order” or “to Bearer.” Consequently, it is not a negot…
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Rogers v. Willard, 453 So. 2d 1175 (Fla. 3d DCA 1984)…PER CURIAM. We reverse the directed verdict entered in favor of the defendant upon a finding that the plaintiff had at least made out a prima facie case for recovery of a debt on a simple contract. See Locke v. Aetna Acceptance Corp., 309 So. 2d 43 (Fla. 1st DCA 1975). See generally 6 Fla.Jur.2d Bills and Notes § 21. We further hold that the court erred in finding the instrument nonnegotiable because it was payable out of “restaurant earnings.” Payment was not conditioned to be made only out o…