Edgar v. Bacon

• Decision Date: 01 May 1929
• Parties: EDGAR v. BACON et al.
• Court: Florida Supreme Court

122 So. 107

97 Fla. 679

EDGAR v. BACON et al.

Florida Supreme Court, Division A.

May 1, 1929

Error to Circuit Court, Pinellas County; J. C. B. Koonce, Judge.

Action by Maude Milling Bacon and her husband, J. F. Bacon, and by J. F. Bacon, against John M. Edgar. Judgment for plaintiffs and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Reviewing court cannot set aside verdict on conflicting evidence. Where testimony is conflicting, reviewing court cannot hold that verdict in favor of plaintiff should be set aside because of lack of evidence to support it.

Right of action follows consideration in action on implied contracts. In action upon implied contracts, right of action follows the consideration.

If money was paid by plaintiffs jointly or out of joint funds they must all join in action for recovery; otherwise person so paying must sue separately and cannot join. In action for money had and received, if money was paid by plaintiffs jointly or out of joint funds, they must all join, but, if money was paid by one of plaintiffs out of his own funds person so paying must sue separately and cannot join.

Motion for judgment non obstante veredicto should be made before entry of judgment. Motion for judgment non obstante veredicto because declaration alleged a joint demand or indebtedness due all plaintiffs, whereas there was no evidence to sustain such claim, should have been made before entry of judgment.

Plaintiff must show joint liability on part of all defendants in action ex contractu, and only joint judgment can be rendered. Generally in an action ex contractu against several defendants, plaintiff must show a joint liability on part of all defendants, and in such a joint suit only a joint judgment can be rendered.

Husband may sue in equity for wife as next friend, when his interests are not adverse. Unless otherwise provided by statute, the general rule is that in equity a married woman sues by next friend, which next friend may be the husband, when his interests are not adverse.

In law action to enforce personal or property rights of married woman, husband should be joined as party plaintiff. In actions at law to enforce the personal or property rights of a married woman, except when otherwise provided by statute the husband should be joined as a party plaintiff with the wife.

Failure of wife to sue by husband as next friend, not objected to in lower court, held waived. Where failure of wife, in suit to recover money due her on an implied contract, to sue by husband as next friend, was not objected to in lower court, reviewing court will consider that point waived.

Verdict and judgment for wife, in action to recover money due wife, joining wife and husband in his capacity as such and as an individual, held incoasistent with pleadings and proof. Where declaration, in suit to recover money due wife on an implied contract, joined as plaintiffs the wife and her husband in his capacity as husband and also in his capacity as an individual, and evidence tended to show an indebtedness to the wife alone and failed to show any joint indebtedness to all plaintiffs as alleged in declaration, held that verdict and judgment finding for the wife were inconsistent with pleadings and proof.

Declaration alleging joint obligation to all plaintiffs requires that all plaintiffs must be entitled to recover or none can recover. In action ex contractu, where there are two or more persons joined as plaintiffs and declaration alleges a joint obligation or indebtedness to all plaintiffs, all plaintiffs must be entitled to recover or none can recover, in absence of proper elimination of unnecessary parties, and appropriate amendment of pleadings when necessary.

Objection that all plaintiffs must be entitled to recover or none can recover, where suing on joint obligation, should seasonably be made. Objection, in action ex contractu where there are two or more persons joined as plaintiffs and declaration alleges a joint obligation to all plaintiffs, that all such plaintiffs must be entitled to recover or none can recover, should be seasonably made; otherwise in some cases it will be held to be waived.

Married woman could not recover money paid on contract, absent showing vendor had failed or refused to perform or was unable or unwilling to do so. Where married woman engages to purchase property upon a contract not enforceable against her personally, and pays to vendor a part of the purchase money in cash, she cannot recover money so paid, in absence of showing that vendor had failed or refused to perform the contract on his part, or was unable or unwilling to do so, and hence instruction authorizing married woman to recover maney paid on such a contract without such showing was erroneous.

COUNSEL

J. C. Davant, of Clearwater, and Sikes & Edgar, of Tarpon Springs, for plaintiff in error.

Baskin & Jordan, of Clearwater, for defendants in error.

OPINION

BROWN J.

This was an action on the common counts, brought by 'Maude Milling Bacon, joined by her husband, J. F. Bacon, and J. F. Bacon, plaintiffs, v. John M. Edgar.'

The purpose of the suit was to recover money which had been paid by Mrs. Bacon to the defendant upon a contract entered into between Mrs. Bacon and the defendant, by which she agreed to purchase certain real estate from the defendant at a certain price, of which she paid $5,000 cash at the time the contract was made, and the balance payable on deferred installments. Plaintiff's testimony was to the effect that the defendant failed and refused to perform the contract on his part, and yet refused to return the money. The defendant offered evidence to the contrary, but, the testimony being in conflict on that point, we would not be authorized to hold that the verdict in favor of the plaintiff should be set aside because of lack of evidence to support it. The only written evidence of the contract was a brief receipt signed by the defendant, Dr. John M. Edgar, acknowledging payment by Mrs. Bacon of $5,000 on November 12, 1925, 'deposit on purchase of house and furniture situated on Victoria Drive, Dunedin, Florida, purchase price $40,000.00, $10,000.00 additional to be paid at transfer of deed, and remainder in one, two, three and four years, interest 8%, semiannually.' The receipt was not signed by Mrs. Bacon, nor witnessed or acknowledged.

Three of the counts were based on an implied obligation to all the plaintiffs jointly, but two of the counts, while alleging an indebtedness to all the plaintiffs, showed that the money was 'paid' or 'lent' by Mrs. Bacon, and hence showed that the cause of action was in her alone under these counts. The general rule is that, in actions upon implied contracts, the right of action follows the consideration, and that, in an action for money had and received, if the money was paid by the plaintiffs jointly or out of joint funds, they must all join, but, if the money was paid by one of the plaintiffs out of his own funds, the person so paying must sue separately and cannot join. 15 Encyc. Pldg. and Prac. 540, 541. Although the evidence showed that Mrs. Bacon paid the money by her own check and that her husband had no part in the contract, there was no objection to the admissibility of the evidence on the ground of variance; that is, that the declaration set up an obligation to the plaintiffs jointly, whereas the evidence showed an obligation, if any, to one only. Nor was there any action taken to have the misjoinder of parties corrected at the trial under section 2567, R. G. S., being section 4207, C. G. Laws. In 15 Encyc. Pldg. and Prac. 761, it is said:

'As a general rule, the failure to demur for misjoinder of plaintiffs, where this appears on the face of the petition or complaint, will be held to constitute a waiver of the objection.'

See, also, Campbell v. Knight, 92 Fla. 246, 109 So. 577; 20 R. C. L. 712.

The jury brought in a verdict reading as follows:

'Maude M. Bacon, Plaintiff, v. John M. Edgar, Defendant. We the jury find for the plaintiff and assess the damage at $5,000.00, so say we all.' Signed by the foreman. The court then entered judgment in favor of Maude M. Bacon for the amount of the verdict.

Three days later, according to the transcript, the defendant filed a motion for judgment non obstante veredicto, upon the ground, among others, that the declaration alleged a joint demand or indebtedness due to all the plaintiffs, whereas there was no evidence to sustain such claim. This was overruled. This motion should have been made before entry of judgment. 33 C.J. 1187. Defendant then interposed a motion in arrest of judgment, and later a motion for new trial upon the same ground and upon the ground that the verdict was for one only of the plaintiffs and hence did not adjudicate the rights of all the plaintiffs, whose action was a joint one; also upon other grounds. These motions were also overruled.

Plaintiff in error cites, in support of these motions, Springstead v. Crawfordville State Bank, 63 Fla. 267, 57 So. 668 but that case is hardly in point here. It is true that, as a general rule in an action ex contractuagainst several defendants, the plaintiff must show a joint liability on the part of all the defendants, and that in such a joint suit only a joint judgment can be rendered. Somers v. Florida Pebble Phosphate Co., 50 Fla. 275, 39 So. 61; Hale v. Crowell's Adm'x, 2 Fla. 534, 50 Am. Dec. 301; Bacon v. Green, 36 Fla. 325, 18 So. 870; 15 Encyc. Pldg. and Prac. 548, 553, et seq.; 33 C.J. 1124, 1139, et seq. But we are here dealing with joint plaintiffs, not joint defendants, and, as we have seen, there was no objection made to the alleged misjoinder of parties plaintiff until after verdict. The defect, if any, was an...