Salomon v. Pioneer Co-operative Co.

Citations

• 21 Fla. 374

Syllabus

<p>1. When it is expressly agreed between a debtor and creditor that a negotiable promissory note or bill of exchange given by the the former to the latter should operate as a payment and satisfaction of an existing claim, the creditor cannot maintain an action on such claim, but will be confined to his remedy on such note or bill. The intention of the parties as to whether the bill or note was so given and received is a controlling element in the issue, and is a question of fact for the jury. May & Sloan vs. Gamble, 14 Fla., 495, approved.</p> <p>2. A plea filed to the common counts in action on an open account for goods sold, &c., and alleging that before the action the defendant discharged and satisfied the plaintiff’s claim by giving a draft on a third person for the full amount of the claim, and that the plaintiff accepted the same in full payment and satisfaction thereof, sets up a good defence in law, and is not demurrable. It is not necessary to expressly allege that the draft was negotiable, as the plea, in the absence of such allegation, is sufficient to admit proof of a negotiable instrument.</p> <p>3. The allegation, in a plea to such an action, that the plaintiff endorsed and transferred the draft before it became due, and that the endorsee brought suit thereon against the defendant, and that there was a judgment therein against the endorsee, does not in the absence of the agreement that the draft shall operate as a payment or satisfaction of the account, constitute a defence to the action on the account: non constat, but that the assignor may have owned and held the draft by re-assignment, and this may have been the grouud of defendants recovery against the original assignee.</p> <p>4. When it appears on the trial that a negotiable bill or note has been given on account of the debt sued on, but there is no agreement, by which it operates as payment or satisfaction, the plaintiff will not be permitted to take judgment unless he produces the note or bill