Archibald v. Wittmer

• Decision Date: 11 May 1960
• Docket Number: No. 1594,1594
• Citation: 120 So.2d 236
• Parties: Fred B. ARCHIBALD and Lucy Pease Archibald, Appellants, v. John C. WITTMER a/k/a J. C. Wittmer, Appellee.
• Court: Florida District Court of Appeals

Page 236

120 So.2d 236

Fred B. ARCHIBALD and Lucy Pease Archibald, Appellants, v. John C. WITTMER a/k/a J. C. Wittmer, Appellee.

No. 1594.

District Court of Appeal of Florida, Second District.

May 11, 1960.

George S. Saltsman and Page S. Jackson, St. Petersburg, for appellants.

Gardner W. Beckett, Jr., of Askew & Earle, St. Petersburg, for appellee.

WILLIAMS, V. A., Associate Judge.

The plaintiffs in this suit upon a promissory note have appealed from an order granting a new trial entered by the court below.

In granting the defendant appellee's motion for a new trial, the trial judge ruled that the jury had been misdirected. His ruling will not be reversed unless it is clearly erroneous, Lowenthal v. Laurent, Fla.App.1958, 102 So.2d 410, 411. The burden rests upon appellants to make reversible error clearly appear, Tampa Transit Lines, Inc. v. Rodriquez, Fla.App.1958, 1958, 100 So.2d 676. In addition, a stronger showing is required to reverse an order allowing a new trial than one denying it. Blue & Gray Cab Co. v. Lowe, 143 Fla. 129, 196 So. 425.

Briefly stated, the complaint, answer and the testimony disclose that the appellee was the maker of two promissory notes; that the appellants were the payees; that the notes on their face were past due; that they were given for good and valuable consideration. In his answer, the appellee admitted the foregoing elements; but affirmatively pleads that a condition precedent to the execution and delivery of the notes had not been met and that as a consequence thereof, the notes have not yet matured.

The appellee affirmatively states in his answer that in August, 1954, the appellant Fred B. Archibald, advised him that the appellant and his wife were interested in acquiring and operating a business and that they desired the appellee to be the production manager thereof; that the appellee then advised appellant he was impecunious as a result of a previous business failure; presently had a good job with the U. S. Post Office and hesitated to give up a certainty for an uncertainty. He then alleges that the appellant, as a further inducement, offered him an interest in the business if he would accept the job as production manager. He further alleges that the appellants agreed to and did put up a total sum of $4,000 to purchase for him a total of 40 shares of preferred stock of the corporation formed, which preferred stock had a par value of $100 per share and that, as a bonus, each shareholder received one share of common stock of no par value for each share of preferred stock owned.

He then alleged it was agreed that if the preferred stock subscribed in his name was redeemed by the corporation, then in that event, and only upon that condition, would he be obligated to pay the appellants out of the money thus received the amount which the appellants had paid for his stock.

Trial was had upon the issues formed and the jury returned a verdict for the appellants.

In substance, the controlling issue presented by the trial court to the jury in his charge involved the meaning or nature of the notes themselves, i. e., either they were evidence of the debt, in which case the jury was to return a...