Foster v. Rosamond

• Decision Date: 26 October 1937
• Docket Number: 6 Div. 51.
• Citation: 28 Ala.App. 99,180 So. 334
• Parties: FOSTER v. ROSAMOND.
• Court: Alabama Court of Appeals

180 So. 334

28 Ala.App. 99

FOSTER v. ROSAMOND.

6 Div. 51.

Court of Appeals of Alabama

October 26, 1937

Rehearing Denied Feb. 8, 1938.

Further Rehearing Denied Feb. 22, 1938.

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action by Mrs. John S. Foster against E. P. Rosamond. There was a judgment for plaintiff, and from a judgment granting defendant's motion for a new trial plaintiff appeals.

Affirmed.

Certiorari denied by Supreme Court in Foster v. Rosamond (6 Div. 306) 180 So. 338.

John S. Foster, Frank A. Wilkinson, and Albert Boutwell, all of Birmingham, for appellant.

W. H Sadler, Jr., of Birmingham, for appellee.

RICE Judge.

Appellant who was the plaintiff in the court below, began this suit against appellee claiming $2,500 of him because of the alleged breach of a contract between the plaintiff and the defendant (appellee) whereby the defendant agreed to invest $3,000 for the plaintiff in Florida real estate--the "Florida boom" being in full swing at the time--with the further understanding that the defendant guaranteed that the money would be returned within a certain number of months; that the defendant should undertake such service and assume such risk without any compensation whatsoever; that if any profit should come from the investment the entire profit should go to the plaintiff and any loss would fall entirely upon the defendant.

The plaintiff testified that such a contract was made; the defendant denied it. The defendant stated that the plaintiff had requested him to invest money in Florida real estate during the real estate boom in that state and that he agreed to do so, warning her of the speculative nature of the transaction, but undertaking to render that service without charge because of the kinship--they were related by marriage--that existed between the plaintiff and the defendant.

But before the case was submitted to the jury plaintiff had receded from her claim as above outlined, and relied for a recovery upon the contention that, in respect to $500 of the money sent to the defendant for investment, the defendant used that money for his own purposes and did not invest it.

It was shown that a total of $3,000 was sent to the defendant for investment. It was conclusively shown that $2,500 of the money was invested, and plaintiff abandoned any claim for a recovery in respect to that $2,500.

As to that particular $2,500 the evidence conclusively showed that the defendant had invested $2,000 along with a number of other persons in a corporation formed by them to purchase Florida real estate, and that the plaintiff had received and accepted without objection (and kept) the shares of stock representing that investment of $2,000. And as to the remaining $500 of that particular $2,500 the evidence conclusively showed that the defendant had invested that $500 in Florida real estate which was soon thereafter sold at a profit, and that the defendant had returned to the plaintiff, in cash--or a check which was "cashed"--the $500 so invested, together with $100, being her proportionate share of the profit.

The case was reduced to the remaining $500. As to that, the defendant's testimony was inconsistent, uncertain, and inconclusive, though he did maintain that he had invested, for plaintiff, and lost, this particular $500.

It seems to us but natural that defendant's testimony as to this $500 should have been "inconsistent, uncertain, and inconclusive"--confused might be a better term.

The transactions attempted to be described in the testimony occurred in 1925--while the "Florida boom" was at its most hectic. The testimony was given some ten years after the transactions. It was shown that at the time of the transactions here in question defendant, along with a vast number of others, was actively engaged in dealing in real estate in Florida on his own behalf, and for and along with numerous other persons. He participated in a variety of transactions with a large number of people in different parts of the country.

The common practice in such matters in Florida at that time, as shown by the testimony, and as is well known, was to form what was called syndicates--that is, a number of persons would join together in the purchase of a singe piece of real estate, taking title sometimes in a trustee, and sometimes in a corporation.

When the defendant received plaintiff's money, he claimed, and testified, that he placed it in these syndicates and, naturally, did not attempt to carry in his own mind the details, or to himself keep private records of the history of the operations of these several syndicates.

It appears without dispute that when the "Florida boom" reached its climax, if that describes it--"exploded," one of the lawyers in the case terms it--confusion was worse confounded. Records became scattered; and, as appellee's counsel describes it, "those participating in the boom, in large numbers, returned to their former homes and former pursuits and tried to forget." Appellee is shown to have invested and lost large sums of his own individual money, as well as that of others near and dear to him--not counting plaintiff, appellant.

So we say it is but natural that his account, in his testimony at the trial, of what he did with the $500, the basis of the verdict returned against him, was not as definite as it could have been had he been then in possession of all the evidence.

We have carefully studied the evidence embodied in the bill of exceptions. It is our considered opinion that appellee could not, rightfully, be convicted of a lack of diligence in seeking out, or recalling, every bit of the evidence that might have supported his testimony on the trial. Ohme et al. v. Bisimanis, 222 Ala. 262, 132 So. 161.

After the trial, upon a renewed search for evidence, and, as we read the record, purely by accident, he found a canceled check, which, if he had had same at the trial, would have, in our opinion, changed the jury's action.

At any rate, upon the hearing of appellee's motion to set aside the verdict of the jury, and the judgment rendered thereon, the learned trial judge was of the opinion that this newly discovered evidence was of that nature. And he accordingly granted appellee's motion--basing his action, as the judgment entry recites, upon the ground of "newly discovered evidence."

The following statement of the law seems to have, at least in effect, the full approval of our Supreme Court, to wit: "The granting or denying of a motion for a new trial on the ground of newly-discovered evidence is a matter resting largely in the discretion of the trial court, and its order will not be reversed on appeal unless it is made to appear that the order violated some legal right of appellant, or was an abuse of discretion; the presumption being that the discretion was properly exercised." Layman v. Minneapolis St. Ry. Co., 66 Minn. 452, 69 N.W. 329. See Stephens et al. v. Pate, 221 Ala. 200, 128 So. 176.

It only remains for us to say that we have closely examined the testimony upon which appellee's motion...