Clinch v. Canova

• Decision Date: 29 May 1894
• Citation: 33 Fla. 655,15 So. 427
• Parties: CLINCH v. CANOVA et al.
• Court: Florida Supreme Court

15 So. 427

33 Fla. 655

CLINCH v. CANOVA et al.

Florida Supreme Court

May 29, 1894

Appeal from circuit court, Clay county; James M. Baker, Judge.

Action by P.J. Canova & Co. against J. H. M. Clinch. Judgment for plaintiffs, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

A new trial granted where in an action on the common counts, with a plea of the general issue, the evidence fails to show that the person claimed by the plaintiff to have acted as agent for the defendant was authorized to bind the latter to pay for goods furnished to parties named in the bill of particulars.

COUNSEL A. W. Cockrell & Son, for appellant.

OPINION

RANEY C.J.

Appellees sued appellant, declaring for goods bargained and sold by the former to the latter, and by the former at the request of the latter, and for money found to be due on account stated. Defendant pleaded the general issue, and there was trial by jury, resulting in a verdict in favor of plaintiffs, and, a motion for a new trial having been refused, judgment in the sum of $151.87 and costs was entered, and appellant appealed.

The amended bill of particulars is as follows:

Mr. J. H. M. Clinch, to P. J. Canova & Co. Dr. 1888. May 26. To goods sold to J. P. Moore, per your order $ 20 00 May 26. To goods sold to Brazillo (Italian), per your order ....... 32 99 May 26. Goods sold to Valpato (Italian) per your order ....... 22 35 May 26. Goods sold to Gealto per your order ........................... 26 43 May 26. Goods sold to Graziano (Italian), per your order ....... 18 30 May 26. Goods sold to Marco, per your order ........................... 17 60 May 26. Goods sold to Keko per your order ............................ 5 50 May 26. Goods sold to Laffaletto, per your order ...................... 10 13 ------- $153 30

J. S. Wright, a witness for plaintiffs, testified that he was agent for defendant several years, and as such had control of the brickyard and the street railroad owned by him; of the former from some time in 1887 until June, 1888. That his authority was for the purchase of the supplies and material, and general control of the brickyard, and to pay laborers or hands. That he was engaged in brickmaking for the defendant, and that the duty devolved upon him to do whatever was necessary. That he paid nearly all the hands in money, but sometimes paid them with orders on plaintiffs. 'The order for $20, Moore's account,' according to his best recollection, was in writing. That he (witness) paid in orders when he had no money.

Plaintiff P.J. Canova testified that the orders from Wright to him for goods for Clinch's men were all verbal; none were in writing. 'I have no orders in writing; I have pay rolls,--several of them.'

Wright, resuming, testified: That he was not clear about giving the written order in Moore's case,--the item of Moore's debt. That he could not say exactly as to the amount due on account of each man. The aggregate amount is $153.30. That the account sued on is just and correct, as shown by the amended bill of particulars. On cross-examination, he said that Clinch was suing him for moneys not accounted for, and that he was suing Clinch.

Plaintiff P.J. Canova then testified: That he was plaintiff. That Wright promised to let him know the amount of these people's accounts. 'He would pay me according to his pay roll.' That he (witness) kept each person's account separately. J. P. Moore had no account. That witness let Brazillo have $32.99 worth, and Valpato $22.35 worth, and that it was still due; and sold to Gealto $26.43 worth, and it was still due; and sold to Graziano $18.30 worth, and it is still due; and sold goods to Marco, $17.60 worth, and to Chico, $5.50 worth, and to Laffaletto, $10.30 worth, which amounts were still due. That the account sued on was just and correct, and the whole amount was still due. On cross-examination, he stated that he knew the defendant personally, and had known him a good many years. That defendant did come to him, and have a conversation with him about the account against these men. That witness did not say to him that he (witness) had no account against him. That defendant asked him if Wright was paying off his men at witness' store, and witness replied that to some extent he was. That witness talked to some extent with defendant about the pay rolls, and Wright's action towards him. That witness did tell him that he had no account against him. That witness showed him this account against Wright, as agent for him. This account that witness sued on, witness had been informed by Wright, was correct according to the pay rolls. Here defendant's counsel handed to witness a paper writing headed: 'Copy of Acct., from Canova's Books, of Col. J. S. Wright.' This account runs from September 29, 1887, to June 23, 1888, amounts to $511.35, and shows balance of $158.18 due on it. It is indorsed or certified as follows:

'Green Cove Springs, Fla., July 20, 1888.

'I certify this is a correct copy of the account of Col. Wright as per our books to date.

P. J. Canova & Co., per B.

'Having checked up the account with Mr. Brown, I certify this is a correct copy of the account.

D. Page.'

Referring to the account, witness said that these accounts were the same as the account sued on, and, except Moore's, were charged upon witness' books. That his books charged these men with these accounts. That the account was drawn correctly from witness' books. Brown was his clerk. The statement of account certified to by P.J. Canova & Co., through Brown was, in the main,...