Farrell v. Solary

• Decision Date: 21 May 1901
• Citation: 31 So. 283,43 Fla. 124
• Court: Florida Supreme Court
• Parties: FARRELL v. SOLARY.

31 So. 283

43 Fla. 124

FARRELL v. SOLARY.

Florida Supreme Court

May 21, 1901

Error to circuit court, Duval county; Rhyden M. Call, Judge.

Action by W. J. Farrell against Antonio Solary. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A trial court should not grant a new trial on the ground that the verdict is not supported by the evidence, where there is material conflict in the evidence, unless the weight of the testimony so clearly preponderates against the verdict found as to require its annulment in order to meet the demands of justice. But trial courts, of necessity, are vested with a discretion in granting or withholding new trials. And where they grant one on the ground that the evidence does not sustain the verdict, in a case in which the evidence is conflicting upon a material issue, an appellate court, acting under the state (section 1267, Rev. St.) authorizing writs of error from orders granting new trials, will not reverse such order unless it is affirmatively and clearly made to appear from a clear and palpable preponderance of evidence in support of the verdict overturned, that the trial judge has abused the discretion with which he is vested in such cases or that some settled principle of law has been violated. Simply because an appellate court, from the showing made in the record before it, might not have granted the new trial had it acted in the first instance in place of the trial judge, or because it would not, under the same circumstances have disturbed a ruling denying such new trial, furnishes no reason of itself to an appellate court for reversing an order of a trial judge granting a new trial.

COUNSEL

T. M. Day, Jr., for plaintiff in error.

A. W. Cockrell & Son, for defendant in error.

The plaintiff in error, Farrell, sued the defendant in error, Solary, in assumpsit, in the circuit court of Duval county, upon a promissory note as follows:

'$225.00. Jacksonville, Fla., June 16th, 1893.

Ten (10)

Ten (10) days after date, I promise to pay to the order of myself two hundred and twenty-five dollars, with interest after maturity at the rate of ten per cent. per annum until paid for value received; negotiable and payable at the Southern Savings and Trust Company; and, if not paid at maturity, this note may be placed in the hands of an attorney at law for collection, and in that event it is agreed and promised by the makers and indorsers, severally, to pay an additional sum of ten per cent. for attorney's fees. Cromwell Gibbons.'

Indorsed on back: 'Cromwell Gibbons. A. Solary. W. J. Farrell.'

The first count of the declaration, after reciting the making of said note by Gibbons, alleges, in substance, that Gibbons indorsed the same to Antonio Solary, and that the latter indorsed same to the plaintiff, and that the same was duly presented for payment at its place of payment, but was not paid at its maturity, and was dishonored, whereof the defendant Solary had due notice, but did not pay same, and the same was placed in the hands of an attorney for collection, whereby Solary became bound to the plaintiff for the principal and interest of said note, and an additional sum of 10 per cent. of the aggregate of said principal and interest for attorney's fees.

The second count of the declaration, after alleging the making of said note by Gibbons, charges that the said defendant Solary before the negotiation of said note and the delivery thereof to the plaintiff, indorsed said note for the purpose of giving said Cromwell Gibbons faith and credit with the plaintiff, and thereby promised to pay said note if not paid by the said Gibbons at maturity, and the said Gibbons indorsed said note to plaintiff, and the said note was duly presented for payment at its place of payment, but was not paid at maturity, and was dishonored, whereof the defendant Solary had due notice, but did not pay the same, and the same was placed in the hands of an attorney for collection, whereby said defendant became bound to pay plaintiff the principal and interest thereof, and an additional sum of 10 per cent. of the aggregate thereof for attorney's fees.

The declaration also contained the common counts for money paid out and expended, money lent, and account stated. To this declaration the defendant Solary interposed the following pleas:

'(1) That said note was not duly presented for payment and dishonored, as set up in said declaration.

'(2) That he did not have due notice that said note was not paid at maturity and was dishonored, as set up in said declaration.

'(3) For pleas to so much of said counts, severally, as claim an attorney's fee, says that this defendant did not promise that if said note was not paid at maturity said note might be placed in the hands of an attorney for collection, and in that event to pay the sum of ten per cent. attorney's fee, as set up in said declaration.

'(4) And for plea to the second count this defendant says that he did not, before the negotiation of said note and delivery thereof to the plaintiff, indorse said note; that, on the contrary, said Gibbons indorsed said note before this defendant did.

'(5) That said alleged promissory note sued on was altered after this defendant indorsed the same, in this: that it was made payable, by alteration thereof, ten days after date, instead of thirty days after date.'

'Never was indebted' was pleaded to the common counts.

Issue was joined upon all the pleas except the one alleging alteration of the note, and to this a replication was filed, alleging that the defendant, Solary, consented to and ratified the charge of said note in said plea mentioned, and that said note, as sued upon, is the obligation of the defendant. To this replication the defendant rejoined, alleging that he did not consent to and ratify said alteration, as set up in the replication.

Upon the issues joined, the case was submitted to a jury, who returned a verdict in favor of the plaintiff for $281.75 and costs. Thereupon the defendant moved for a new trial upon the following grounds:

'(1) The verdict is not supported by the evidence.

'(2) The verdict is contrary to the evidence.

'(3) The verdict is contrary to the charge of the court.

'(4) The verdict is not consistent with the charge of the court.

'(5) Under the law as given by the court, and the evidence introduced in this case, the verdict should have been for the defendant.'

This motion for a new trial was granted by the court, and from this order, under our statute, the plaintiff below sues out writ of error.

OPINION

TAYLOR, C.J. (after stating the facts).

The only error assigned is the order granting the defendant's motion for new trial. Orders granting new trials may now be reviewed on writ of error without a final judgment in the cause, under the provisions of section 1267 of the Revised Statutes, as follows: 'Upon the entry of an order granting a new trial at law, the party aggrieved by such order may, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, which shall review the said order, and if the cause be reversed, shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail.' Substantially the same provision of law prevails in many of the American states, and the rules for the...