ROBERT R. FRANK, APPELLANT,
v.
INTERCONTINENTAL BANK OF MIAMI BEACH, ETC., APPELLEE
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Frank, an attorney, executed a note to Intercontinental Bank in exchange for the bank releasing a judgment it had against Frank's client. When the renewal note came due and was not paid, the bank sued for collection. The court affirmed judgment for the bank, holding that Frank had adequate consideration for his original note and that defenses related to accommodation endorsement were unavailable on a renewal note.
The court held that Frank received adequate consideration for his original note and that neither the lack of consideration defense nor the accommodation endorser/maker defense was available to Frank with respect to the renewal note.
[1] A renewal note extinguishes the original obligation and creates a new one, precluding defenses available on the original note.
[2] A party cannot raise an unpled defense at trial over objection.
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Join FLexlaw to unlock all legal intelligence“the appellant contending, first, there was no consideration for his original note and, second, that he executed same merely as an accommodation to the bank and not to accommodate his client. We find no merit in either contention.”
Establishes the two defenses Frank raised on appeal and the court's rejection of both.
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Join FLexlaw to unlock all legal intelligenceFrank, an attorney, executed a note to the bank in exchange for the bank's release of a previously-obtained judgment against Frank's client. Frank als…
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PER CURIAM.
The appellant (an attorney) executed a note to the appellee-bank in exchange for a note previously given to the bank by a client of his. He also directed who would be named in an assignment of final judgment, which the bank had previously recovered on the client’s note. He subsequently renewed the obligation to the bank by the execution of an additional note which was labeled “renewal note”. This renewal not being paid when it became due, the bank brought suit for collection. After the cause was at issue, the parties stipulated that the only issue to be tried was consideration to the appellant, Frank, at the time of the execution of his original note.
At the time of trial, appellant attempted to raise a defense not pled, relating to his being an accommodation endorser or maker for the benefit of the bank. This defense was objected to. After hearing, the trial court found consideration and rendered judgment accordingly. This appeal ensued, the appellant contending, first, there was no consideration for his original note and, second, that he executed same merely as an accommodation to the bank and not to accommodate his client. We find no merit in either contention. See: Section 673.3-408, Florida Statutes (1973), 19B F.S.A. 206 and comment thereon; Fla. R.Civ.P. 1.190(b). Further, the note being sued on being a “renewal note”, neither defense was available to the defendant, Frank, in the trial court. See: Padgett v. Lewis, 54 Fla. 177, 45 So. 29 (1907); Hurner v. Mutual Bankers Corporation, 140 Fla. 435, 191 So. 831 (1939); Watson v. Central Florida Properties, Inc., 172 So. 2d 608 (Fla.2d DCA 1965).
Therefore, the final judgment under review is affirmed.
Affirmed.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hurner v. Mut. Bankers Corp., 140 Fla. 435 (Fla. 1939)
- Padgett v. Lewis, 54 Fla. 177 (Fla. 1907)
- Watson v. Cent. Fla. Props., Inc., 172 So. 2d 608 (Fla. 2d DCA 1965)