Gendzier v. Bielecki

• Decision Date: 16 October 1957
• Parties: Harry GENDZIER and Sheidon Gendzier, as Co-Partners, trading and doing business as Florida Rag Company, Appellants, v. Adam BIELECKI and Walter Bielecki, as Co-Partners, trading and doing business as Miami Graded Paper & Rag Salvage, Appellees.
• Court: Florida Supreme Court

Page 604

97 So.2d 604

Harry GENDZIER and Sheidon Gendzier, as Co-Partners, trading and doing business as Florida Rag Company, Appellants, v. Adam BIELECKI and Walter Bielecki, as Co-Partners, trading and doing business as Miami Graded Paper & Rag Salvage, Appellees.

Supreme Court of Florida.

Oct. 16, 1957.

Rehearing Denied Nov. 13, 1957.

Adams & Rothstein, Jacksonville, for appellants.

Wallace N. Maer and Edward E. Lustgarten, Miami, for appellees.

THORNAL, Justice.

Appellants Gendzier, who were plaintiffs below, seek reversal of a final judgment based on a jury verdict in favor of appellees Bielecki, defendants below, in a suit on an alleged account stated and for goods sold.

The appeal tenders for decision the correctness of the ruling of the trial judge in admitting certain evidence with reference to the intent of the appellees in signing a document and also the refusal of the trial Judge to instruct the jury on the effect of a 'signature' by initials accompanied by remarks of the Judge alleged to be prejudicial.

The parties were all engaged in the rag and paper waste materials business. The Gendziers as Florida Rag Company did business in Jacksonville. The Bieleckis as Miami Graded Paper and Rag Salvage did business in Miami. In 1951 the parties entered into a formal written agreement whereby the Gendziers purchased certain merchandise, stored it in the Bieleckis' Miami warehouse and when they sold it, shared profits and losses with the Bieleckis. In addition they sold merchandise to each other. Their dealings could be described in three phases, towit: the formal contract with reference to the storage and sale of waste paper; sales by the Gendziers to the Bieleckis; and sales by the Bieleckis to the Gendziers.

In August, 1953, after a conference between Sheldon Gendzier and Adam Bielecki, a three-page handwritten document was prepared. An examination of this document reveals a tabulation of various items stored and sold and various credits given on the account. The document it headed 'Amounts due to Florida Rag Co. from Miami Graded Paper and Rag Salvage Co.--Arising from losses on Stored Paper accounts.' Under a section of the document designated 'Summary' we find the statement 'Due us as of this settlement' and a tabulation of figures totaling $6,037.83. This total figure is the result of the debits and credits in connection with the rag and waste paper contract. The document also contained a statement 'Roofing not settled as yet' and 'Merchandise account to be handled as discussed.' Each of the three pages contain the initials 'AB' and 'WB' and the last two pages contain the initials 'SG'. It is admitted that the initials SG were placed on the document by Sheldon Gendzier and the initials AB and WB were placed on the document by Adam Bielecki and Walter Bielecki, respectively.

The parties continued doing business until July, 1954, when the Gendziers rendered statements to the Bieleckis for a total of $6,885.39, representing the amount included in the document above described plus certain merchandise sold and less certain credits since the document of August, 1953. The amount of the demand not having been paid, the Gendziers sued the Bieleckis to recover the total sum alleged to be due. Their complaint was in two counts, the first alleging indebtedness 'for merchandise sold by the plaintiffs to the defendants,' and the second alleging indebtedness by the defendants 'to the plaintiffs on accounts stated for merchandise sold.' By answer the appellees denied the indebtedness and the trial resulted in a jury verdict for the defendants.

In the course of the trial, over objections by appellants' attorneys, the trial Judge permitted the appellees to testify in substance that by affixing their initials to the handwritten document they did not intend it as an agreement to account stated but on the other hand merely attached their initials for purposes of 'identification.' There is no claim, nor was there any testimony, that such purpose or intention was communicated to the plaintiffs or otherwise manifested in any way. The document alluded to, with the initials of the partners affixed in accordance with the undenied request of the plaintiffs, was mailed back to the plaintiffs along with a letter which stated only, 'Enclosed you will find papers we are to send back.'

After retiring to consider its verdict, the jury returned to the courtroom and one of the jurors questioned the Judge as follows: 'This initialed document here, is that as legal as a full signed name, sir?' The Judge replied: 'I am afraid, Mr. Joror, I cannot answer that question for you. You will have to apprise that document as you have and see it and from the evidence that was introduced pertaining to it.' At this point plaintiffs' counsel requested the Judge to instruct the jury 'that the initialing of the papers has the same effect as if they had signed their names in full, whatever that might carry along with it.' In response to this request the Judge replied in the presence of the jury, 'It doesn't carry any weight with me, so I will deny it.' The jury then returned to the jury room and on reappearing in the courtroom returned a verdict for the defendants. Motion for new trial was denied and judgment was entered on the verdict. Reversal of this judgment is now sought.

The appellants contend that it was error to permit the appellees to testify as to their intent when they signed the document with reference to the accounts. They also contend that the Judge should have instructed the jury with reference to the effect of the initials on the document and that the comment of the Judge in the presence of the jury constituted reversible error.

The appellees contend that it was proper to permit testimony as to their intent when they initialed the document and that the comment of the Judge was intended as an observation with reference to the requested instruction rather than an inappropriate comment on the evidence.

We approach first the contention with reference to the refusal of the trial Judge to give the requested instruction and his comments in the presence of the jury at the time the instruction was requested. It is understandable that in the competitive atmosphere of a warmly contested trial, both Judge and counsel often make remarks or observations that would be less likely to occur under more deliberate conditions. Many times such remarks are harmless. Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753. The fact remains, however, that an inappropriate comment on the testimony or the expression of a judicial opinion on the credibility of witnesses or the value of certain evidence often leads a jury of laymen to an erroneous conclusion. 53 Am.Jur., Trial, Sec. 76, p. 75. In the instant case when the juror expressed concern over the weight to be given the initials as contrasted to a full signature, he should have been advised that a set of initials is just as effective to bind a party to an agreement as would be a full signature. 17 C.J.S. Contracts § 62(b), p. 412. In other words there is no material difference whether a party to a contract executes it by affixing his initials or his complete signature. If either is an act of the party in authentication of the document it is equally binding upon him.

The juror in this case was instructed to the effect that the court could not answer the question and that he would have to evaluate the document in the light of the evidence introduced pertaining to it. This response, of course, involves the other point presented by the appeal with...