Opinion
February 14, 1950.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Stanley B. Richard, Miami Beach, for appellant.
L. Earl Curry, Miami, and Thomas Jean Ellis, Tallahassee, for appellee.
On October 26, 1948, Eugenia E. Maloney as executrix of the estate of Patrick H. Maloney, deceased, filed her declaration against McBride's Inc., a corporation organized and existing under the laws of the State of Florida, to secure a judgment on a promissory note. The declaration alleged that the corporate defendant, McBride's Inc., by its note dated June 14, 1946, did promise to pay to P.H. Maloney the principal sum of $15,552.64 on or before one year after said date with interest at the rate of 5% per annum. It was further alleged that a partial payment in the sum of $6995.82 was made on said note on November 21, 1946, which was applied first to the accrued interest and the balance to the principal. It was averred that P.H. Maloney, named as payee in said note, is one and the same person as Patrick H. Maloney who died on July 22, 1947, leaving as his sole beneficiary and executrix Eugenia E. Maloney. To this declaration the defendant filed three pleas. The first of these pleas was that it never was indebted as alleged. In and by its second plea the defendant averred that the note was executed and issued as an accommodation by defendant to the plaintiff and was without consideration. As a third plea the defendant set forth a real estate transaction out of which it claimed this note arose. The plea further denied delivery of the note to Maloney and asserted that the note was retained by L. Earl Curry, secretary of the defendant corporation. The pleas were sworn to by Joseph A. McBride as president of McBride's Inc.
Trial by jury was waived and the case was set down for trial on March 1, 1940, before the Honorable Marshall Wisehart, Circuit Judge. By testimony introduced on behalf of the plaintiff the note was identified and partial payment thereon established. The testimony further developed the fact that the note had been held by Mr. Curry for P.H. Maloney and was delivered by Curry to the attorney for appellant upon her written request. The note was offered in evidence at three different stages and on each occasion objection to its introduction on the ground that the plaintiff had failed to prove delivery and consideration for the note was sustained. Upon failing to have the note received in evidence, counsel for the plaintiff announced "I have no further evidence. I would much prefer to have a judgment rendered so I can take an appeal." On March 9, 1949, the court entered final judgment for the defendant. Notice of appeal was filed on April 7, 1949, and assignments of error were filed on April 14, 1949, charging that the lower court had erred in refusing to admit the note in evidence and in entering judgment for the defendant.
The question presented for our determination is whether the note should have been admitted in evidence. We believe the learned Circuit Judge failed to properly construe Section 52.08, Florida Statutes, 1941, F.S.A., and overlooked our holdings in the following cases: Reddick v. Mickler, 23 Fla. 335, 2 So. 698; McCallum v. Driggs, 35 Fla. 277, 17 So. 407; Davis v. Leighton, 80 Fla. 594, 86 So. 564. It was pointed out in those cases that although the burden of proving consideration is on the plaintiff when the defendant has filed pleas under oath which deny consideration or the execution of the note, it is only necessary that such proof be made before the entry of a judgment favorable to the plaintiff. In the case of McCallum v. Driggs, supra, we said: "It is not necessary to prove the consideration of a note before offering it in evidence, where the consideration is denied. * * * Under the statute, however, the plaintiff, when there is a proper plea denying the consideration of the note, could not take judgment upon the note alone, but must prove the consideration upon which it was given." [ 35 Fla. 277, 17 So. 409.]
As aforestated, the note was properly identified (execution was not denied) which is all that is necessary to make it admissible in evidence. Williams v. Keyser, 11 Fla. 234, 89 Am.Dec. 243; 8 Am.Jur. Bills Notes, Sec. 996 n. 2; Common Law Rule 61. The Circuit Judge erred when he sustained objection to the introduction of the note. However, judgment for the plaintiff could not be entered upon the note alone. After the introduction of the note it would still have been necessary for the plaintiff to have established consideration, since the plea of no consideration was under oath. Section 52.08, Florida Statutes, 1941, F.S.A. does not make it necessary for the plaintiff to establish the consideration for the note prior to its introduction in evidence but only places the burden upon the plaintiff of proving the consideration before the entry of a judgment in his favor.
It might be contended that the statement made by counsel for plaintiff, to-wit: "I have no further evidence" meant that he could not prove consideration but it is noted that he made such statement after he was unable to get the note into evidence. He further stated: "I would much prefer to have a judgment rendered so I can take an appeal." We, therefore, conclude that counsel stated "I have no further evidence" only because he was unable to place the note in evidence. The note should have been admitted in evidence and the plaintiff should have had an opportunity thereafter to prove consideration, particularly in view of the fact that the evidence shows a payment of $6995.82 was made upon the note and credit therefor endorsed upon it. This is a significant circumstance which should be considered in connection with the matter of proving consideration. Especially is this true in a case wherein plaintiff is the personal representative of the deceased payee, for such representative might be, and often is, more handicapped in securing proof of consideration than the payee during his lifetime might have been. Moreover, the execution of the note sued upon was not denied but was admitted (See Am.Jur., supra), and delivery was established. Before final judgment for the plaintiff can be entered, proof of consideration must be made. See Reddick v. Mickler, supra; McCallum v. Driggs, supra, and Davis v. Leighton, supra.
The judgment of the lower court should be and is hereby reversed and the cause remanded for further proceedings.
Reversed.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.