Aarons v. Dougherty , 79 Fla. 812 ( 1920 )

West, J.

In an action of replevin to recover the possession of an automobile there was a judgment for plaintiff and defendant took writ, of error. The issues having been made up a jury was waived and the case was heard and determined by the Judge of the Court, who, after hearing the evidence found in favor of plaintiff and judgment was .entered' accordingly.

The automobile was sold by plaintiff to defendant, a part of the consideration therefor being paid in cash and the balance by two promissory notes of defendant in which he agreed that “the right, title to and ownership” of such automobile, “including all parts, tires or accessories now on or subsequently placed thereon” by the purchaser, the maker of the notes, should remain vested in the vendor until the notes were paid. The notes also provided for the payment by the maker of a “reasonable attorney’s fee if given after maturity to an attorney for collection.”

The payment of one of the notes some time after it was due was proved. Plaintiff’s claim is that the other note was not paid and some time after its due day this action was brought. If this note was not paid when due and before suit was instituted, this action may be successfully maintained. Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 South. Rep. 427; Printing Press & Mfg. Co. v. Walker, 22 Fla. 412, 1 South. Rep. 59.

The controversy grows out of the following circumstances: After the -second note became due there was a conversation over the telephone between plaintiff and' defendant, the payee and make of the note, in which the plaintiff demanded payment. Defendant requested the amount due, principal and interest, and upon being furnished with the amount agreed to send plaintiff a check for the same on Monday or Tuesday of the week following. The defendant failed to ?end the check on Monday or Tuesday, but did post a letter to plaintiff containing a check for the amount stated to be due on Wednesday following, July 10, 1918. On the following day he received a communication from the attorney to whom the note had' been delivered by plaintiff for collection, demanding payment of the note, principal and interest together with an additional amount for attorney’s fee. No attention was paid to this letter and a few days later in a conversation by telephone the attorney advised defendant that the check had been received by plaintiff but that at the time of its receipt the note was in his (the attorney’s) hands for collection, that the check had been delivered by plaintiff to him and would not be accepted in payment of the note unless a check for the additional amount demanded, as attorney fee be sent him. This was refused by defendant, and a few days later his check was returned to him and suit brought for recovery of the automobile.

Defendant contends that inasmuch as plaintiff gave him the amount of the indebtedness which did not include the attorney’s fee and that he thereafter sent a check for this amount to plaintiff, the delivery of the check operated to discharge the obligation and he, the defendant, cannot be held liable on the note for any additional amount as attorney fee.

If defendant had mailed the check at the time he agreed to do so this contention might be upheld, but it appears from his own testimony that he did not do so. The note was past due. It provided, as we have seen, for the payment by the maker of a reasonable attorney’s fee if delivered after maturity to an attorney for collection. No reason for forbearance is shown. If the note was not already in the hands of the attorney at the time of a conversation between the parties, in which the amount due on the note was given to defendant,. upon his failure to make the cheek to plaintiff for such amount at the time agreed, plaintiff was at liberty to deliver the note to the attorney for collection, whereupon defendant’s liability for the attorney’s fee, according to the express terms of his contract, immediately \attached and became a part of the obligation. Mailing a check for the amount stated a day later than agreed upon, if acceptance in full settlement of the obligation was declined, does not amount to payment. Neither does it, under the circumstances, operate as an estoppel to demand the full amount of the obligation, principal, interest and a “reasonable attorney’s fee” to the attorney to whom the .note was given after maturity for collection.

'There was no error in the finding by the court for the plaintiff and the judgment is affirmed.

Browne, G. J., and Taylor, Whitfield and Ellis, J. J., concur.