Bishop v. Taylor

• Decision Date: 07 February 1899
• Citation: 41 Fla. 77,25 So. 287
• Parties: BISHOP v. TAYLOR.
• Court: Florida Supreme Court

25 So. 287

41 Fla. 77

BISHOP v. TAYLOR.

Florida Supreme Court

February 7, 1899

Error to circuit court, Marion county; William A. Hocker, Judge.

Assumpsit by Charles E. Taylor against John A. Bishop. There was a verdict for defendant, and the court granted a new trial, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Motions for new trials are addressed to the sound judicial discretion of trial courts, and, where such courts grant motions of this character, their decisions are presumed to be in accordance with the justice and merits of the cause unless the contrary appears by the record; and an order granting a new trial should not be disturbed by an appellate court unless it appears affirmatively from the record that there has been an abuse of a sound judicial discretion, or that some settled principle of law has been violated.

2. Where the burden of proof is upon a plaintiff, and the evidence before the jury is legally insufficient to support a verdict in his favor, and the jury find a verdict for defendant, the trial court is not justified in setting aside such verdict upon the ground that it is contrary to the evidence and the weight of evidence.

3. Where the record shows that a bill of exceptions was presented to the circuit judge for settlement on a certain day; that he declined to settle and sign it on that day because there were some 'inaccuracies' in same; that it was signed on a subsequent day; and the bill, as signed purports to give in full the direct and cross examination of witnesses, the evidence which plaintiff and defendant introduced to maintain the issues on their respective parts and states that 'plaintiff rested his case' at the conclusion of certain testimony, and purports to give the testimony of plaintiff in rebuttal,--the appellate court will assume that the bill of exceptions contains all the evidence adduced at the trial.

4. A count for money had and received may be proved by any legal evidence showing that defendant has possession of the money of plaintiff, which in equity and good conscience he ought to pay over, but plaintiff cannot recover upon such a count unless he proves title to the fund sought to be recovered.

5. In an action for money had and received, any evidence is admissible on behalf of defendant which tends to show that he in good faith received the fund sought to be recovered as money due to himself, and not to the plaintiff.

6. Where evidence is received without objection, and no motion to strike it out is made, the reception of such evidence constitutes no ground for granting a new trial.

COUNSEL

J. H. Burchell, for plaintiff in error.

The defendant in error began an action of assumpsit against the plaintiff in error, in the circuit court of Marion county, the declaration filed December 5 1892, containing only common counts for money received, money lent, and accounts stated, in the sum of $2,000. The defendant filed his plea, 'Never was indebted,' and, issue being joined thereon, the cause was tried before a jury on October 11, 1893, resulting in a verdict for defendant. Thereupon plaintiff filed his motion to set aside the verdict, and grant a new trial, upon the following grounds, viz.:

'(1) The verdict of the jury is contrary to the evidence and the weight of evidence.

'(2) Also that the court erred in admitting evidence of defendant to show another and different contract, which was inadmissible under the pleadings.

'(3) Also upon additional ground that the court erred in allowing evidence to be introduced in relation to the drawing of checks for money paid by defendant to L. M. Thayer and the plaintiff, which evidence was incompetent, and tended to prejudice the minds of the jury.

On October 21, 1893, the court granted the motion, and the defendant sued out this writ of error to review that ruling. The first error assigned, and the only one considered, is that 'the court erred in granting the plaintiff's motion to set aside the verdict of the jury and grant a new trial.'

The plaintiff's evidence in chief was as follows:

Charles E. Taylor: 'I am the plaintiff. I know the defendant, and have known him many years. The defendant is indebted to me in the sum of $2,000 and interest for an agreement between us. In 1891,--in June, I think it was,--Mr. Bishop was in Ocala getting up phosphate land to sell the French Company. One day I was talking with Capt. L. M. Thayer, the general manager of the Peninsular Phosphate Company, on the front porch of the Ocala House. We saw Mr. Bishop pass, and I suggested to Capt. Thayer to sell him his company. Capt. Thayer said that, if I would introduce him to Mr. Bishop, and the company was sold, he would pay me a commission of $5,000, if it sold for $125,000; and I said, 'If you do, I will give you half.' Capt. Thayer did not know Bishop. We went to Mr. Bishop's room, in the Ocala House. He was lying on the bed. I introduced Capt. Thayer as the manager of the Peninsular Company, and he asked Bishop if he wanted its property. Mr. Bishop asked the price. Capt Thayer asked Bishop if he expected a commission, and Mr. Bishop answered, 'No;' that he got his commission from the other side. Then Capt. Thayer said the price of the Peninsular Company was $125,000. A few days after I met Mr. Bishop, and I said to him: 'You are a good friend of mine. I will be busy, and not have time. Run this through for me, and I will give you $500.' Later on I made up my mind I would give him $1,000, because I thought Bishop was going to take advantage of my confidence in him. On November 12, 1891, Bishop paid $2,000; $1,000 to Capt. Thayer, and $1,000 to me, by check. That leaves a balance of $2,000, which is the amount I sue for in this case. Bishop received $5,000 from the Peninsular Phosphate Company.' Cross-examination: 'I don't know whether commission was paid by the company to Bishop for my account. We made our agreement on the street of the public square in Ocala. Nobody was present. Don't remember whether it was on the west side or north side. It was one side or the other; don't remember which. Was not on Ocala House porch. The $2,000 was paid in two checks. Was not to either my order or to Capt. Thayer's order. The checks were drawn to order of Mr. Bishop, and indorsed by him, and delivered to us. The checks were drawn in that way, and not to order, for private reasons. I never instructed the Peninsular Company to pay Mr. Bishop this commission for me. I never demanded the commission from the company. Don't believe they knew I was to get a commission. Q. What did you do to earn this commission? Ans. I was to receive this commission for introducing Capt. Thayer to Mr. Bishop, and also for getting Capt. Thayer to write Bishop a letter offering to give Bishop $5,000 to refuse to buy the company under the contract.'

Richard McConathy: 'I was secretary and treasurer of the Peninsular Phosphate Company. The company sold its property to John A. Bishop for $125,000, but a commission was paid to him of $5,000. The $5,000 was paid to Bishop in two amounts,--$2,500 by check when first money was paid, in November, 1891, and the other $2,500 credited on Mr. Bishop's note due the company in May, 1892.' Cross-examination: 'The company did not pay this money to Mr. Bishop for Mr. Taylor. We did not know Mr. Taylor in the transaction. I don't remember the exact time I first learned that a commission was to be paid, but it was some time after our first contract with Mr. Bishop. The first time I learned of the commission was when Capt. Thayer came to my office, and informed me that a commission was to be paid to Bishop. Think Mr. Bishop and Mr. Anthony were present. I was surprised to learn that a commission was to be paid, as nothing had ever been said about a commission. I always thought there was something wrong. We did not know anybody else in the matter but Bishop. The company did not know Mr. Taylor was interested in the $5,000. Capt. Thayer did not tell us that he promised Mr. Taylor a commission, but said that it did not make any difference who got it, as the company was getting a good price.'

L. M Thayer: 'I was the general manager of the Peninsular Phosphate Company. I know the plaintiff and defendant. I promised Mr. Taylor a commission of $5,000 if he would sell our company. He went to Mr. Bishop's room, in the Ocala House. Taylor introduced me to Bishop. I asked Mr. Bishop if he wanted to buy the company, and he asked me the price. I asked him if he expected a commission, and Mr. Bishop answered that he got his commission out of the French Company. Then I told him the price was $125,000. Mr. Bishop said he would contract with the company. If it proved satisfactory, would take it. When I left Mr. Bishop, I came direct to the office of Judge McConathy, in the court house, and told him that I had sold the company for $125,000. Afterwards I told the directors I could sell for $125,000, $5,000 commission, but did not tell to whom the commission was to be paid. We entered into a contract with Mr. Bishop that day or the next day; don't remember which. Afterwards the company sold its property to Mr. Bishop for $125,000, but me and Mr. Bishop were to share the expenses of examining the property, but he has never paid his share. The company never agreed to pay any commission to Mr. Bishop. Mr. Taylor informed me that he had arranged with Mr. Bishop to collect his commission.' Cross-examination: 'I had authority to sell the company, and was to pay a commission. I agreed to pay Mr. Taylor $5,000 for selling the company. Mr. Taylor told me that he had arranged with Mr. Bishop to collect for him the $5,000. Nobody was present when he told me. I was not told in Mr. Bishop's presence. Mr. Bishop never told me that he was...