Taines v. Capital City First Nat. Bank

344 So. 2d 273, 22 U.C.C. Rep. Serv. (West) 125
CourtDistrict Court of Appeal of Florida
DecidedMarch 30, 1977
DocketCC-150
StatusPublished
Cited by16 cases

This text of 344 So. 2d 273 (Taines v. Capital City First Nat. Bank) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taines v. Capital City First Nat. Bank, 344 So. 2d 273, 22 U.C.C. Rep. Serv. (West) 125 (Fla. Ct. App. 1977).

Opinion

344 So.2d 273 (1977)

Harold TAINES et al., Appellants,
v.
CAPITAL CITY FIRST NATIONAL BANK, a National Banking Corporation, Appellee.

No. CC-150.

District Court of Appeal of Florida, First District.

March 30, 1977.
Rehearing Denied April 18, 1977.

*274 Brian T. Hayes, Monticello, for appellants.

William M. Smith and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.

ERVIN, Judge.

This is an appeal by appellants from a final summary judgment finding appellants, as accommodation parties, liable to appellee Bank on a promissory note. On *275 March 8, 1974, Terrell-Brown and Company, Inc., executed a promissory demand note[1] payable in one year to Capital City First National Bank. Demand for full payment was made by the Bank in September, 1974. When payment was not made, suit was filed in October, 1974. The Taines, however, were not then personally served. In January, 1975, the Bank and the obligors who were served entered into a stipulation[2] while the suit was in progress, which was filed in the Circuit Court of Leon County, Florida. Subsequently, the terms of the stipulation went into default; service of process was perfected on the Taines and the Taines answered the complaint on the original note alleging that the stipulation was a novation; thereby denying their obligation, and asserting that the effect of the stipulation was to extend the period of time for payment of the note without their consent, change the interest rate, calling for the payment of interest monthly; thus altering the original note without their consent, resulting in their being discharged from the original obligation.

The Taines' only issue on appeal from the final summary judgment is whether the court erred as a matter of law in granting summary judgment to the Bank in view of the terms of the stipulation. The Taines contend they were discharged from liability on the note as a result of (1) the terms of Section 673.606(1)(a), Florida Statutes (1975)[3] and (2) novation.

The Taines assert that Section 673.606(1)(a) controls, arguing that the Bank's agreement to withhold action in the litigation so long as Terrell-Brown complied with the terms of the stipulation acted as a suspension of its right to enforce the note against Terrell-Brown, thus discharging them. The operative words in the above section, however, are "without such party's consent" and "without express reservation *276 of rights... ." The original note's provisions included the following clause:

"The undersigned also agree to any extensions or renewals of this note without further notice, binding the undersigned for payment thereof as if no extensions or forbearance of payment had been made or granted."

Uniform Commercial Code Comment Number Two to Section 673.606(1)(a) states:

"Consent may be given in advance, and is commonly incorporated in the instrument; or it may be given afterward. It requires no consideration, and operates as a waiver of the consenting party's right to claim his own discharge."

Comment Number Four states in part:

"This section retains the right of the holder to release one party, or to postpone his time of payment, while expressly reserving rights against others."

The Taines having consented to a renewal or extension of the note are in no position now to complain that the agreement to suspend litigation operated as a discharge.

The Taines argue however that the stipulation is more than a mere extension of the note because it involves an agreement to withhold pending litigation between the Bank and other obligors to the note. We do not feel that this is a material distinction. Since the decision to withhold action was entirely dependent upon Terrell-Brown's compliance with the terms of the extension agreement, we fail to see any resulting prejudice to Taines — assuming that the stipulation was nothing more than an extension note.

The Taines argue additionally that the stipulation drastically altered without their consent the terms of the original note, changing it from a demand note payable no later than one year after execution to an installment note payable in two and one half years, as well as providing a different rate in interest, resulting in a novation and thereby extinguishing the original obligation. If Taines' position is correct then, of course, they must be discharged. There is no question but that the character of the original note was materially changed. The question then is whether the alteration was such as to result in not merely an extension of the old note, but an extinguishment of it.

A novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation. It ordinarily consists of two stipulations, one to extinguish the old debt and the other to substitute a new one in its place. 23 Fla. Jur., Novation, Section 2 (1959). The rule is not satisfied by the substitution of one paper for another or one evidence of a debt for another, but only by the substitution of a new obligation for another with intent to extinguish the old. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931). One of the circumstances to consider in determining whether a novation occurred is the intention of the parties. Lakeland Silex Brick Company v. Jackson and Church Company, 124 Fla. 347, 168 So. 411 (1936).

It is our opinion that notwithstanding the differences in the character of the two notes there was no such alteration which could reasonably be viewed as extinguishing the original debt. True the method of payment was extended for a longer period of time than was originally agreed. The rate of interest was not variable but was a constant 10% throughout the term of the note. Yet the alteration in the terms of the two notes was no greater than the alteration of certain notes which the Fifth Circuit Court of Appeals in Northwest Acceptance Corp. v. Heinicke Instrument Co., 441 F.2d 887 (5th Cir., 1971), held did not constitute a novation. In the Northwest case, suit was brought by a finance company, Northwest, against a Florida manufacturer, Heinicke, which by contract acted as surety on its customers' notes which had been discounted to the financing company. The contract provided that Heinicke could sell its customers' notes and security to Northwest and that Heinicke would endorse or assign the paper to Northwest. It further provided *277 that in case of default in payment by the customer, Heinicke would repurchase the paper sold upon demand of Northwest. Northwest sued Heinicke following default by a customer. The two original notes given by the customer provided for 8.5% interest and named Heinicke as payee. They also contained standard extension clauses. After the due date of each note, two additional notes were executed by the customer directly to Northwest. Both the additional notes were for a smaller amount than the original notes and both at the rate of 10.5% interest instead of the original 8.5%. The old notes were not cancelled or returned to the maker. The lower court held that these additional notes were not renewal notes since there was both a material change in the indebtedness and the interest rate was raised.

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Bluebook (online)
344 So. 2d 273, 22 U.C.C. Rep. Serv. (West) 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taines-v-capital-city-first-nat-bank-fladistctapp-1977.