Hewitt v. Price, 68-535
| Decision Date | 29 April 1969 |
| Docket Number | No. 68-535,68-535 |
| Citation | 222 So.2d 247 |
| Parties | Robert M. HEWITT, and John V. Deetjen, Appellants, v. James H. PRICE et al., Appellees. |
| Court | Florida District Court of Appeals |
Joseph A. Perkins, L. J. Cushman, Miami, for appellants.
Horton & Schwartz, Miami, for appellees.
Before CHARLES CARROLL, C. J., and PEARSON and SWANN, JJ.
Appellants are John J. Deetjen and Robert M. Hewitt. They appeal from a 'partial final judgment determining all stock claims' which held that they did not own certain shares of stock of Airlift International, Inc., a Florida Corporation. Appellees are James H. Price and James H. Price & Co., et al.
The original action herein was for a determination by declaratory decree of the ownership of certain shares of stock in Airlift International, Inc., a Florida Corporation. John V. Deetjen intervened by permission of the court, and filed his answer and claim. He claimed ownership of three thousand shares of Airlift stock allegedly held in trust for him by Eric C. Bayer, a defendant in the original action. Price answered the claim by denying that Deetjen was the legal or beneficial owner of these shares of stock. He affirmatively alleged that the three thousand shares represented the remainder left over from certain stock certificates which he owned. He claimed that he had not sold nor agreed to sell these shares to Deetjen and that he had not received any consideration for this stock from Deetjen. The trial court, after reviewing extensive testimony and evidence, found that Deetjen had failed to prove by a preponderance of the evidence that he was the owner of the three thousand shares of Airlift stock which he claimed.
There is substantial, competent evidence in the record upon which the trier of facts could find that Deetjen never purchased this stock from Price, never agreed to purchase this stock from Price, and never paid Price any consideration for this stock.
The evidence of Deetjen to support his claim of ownership was all oral.
We find no evidence in the record that Price expressly or impliedly agreed to sell this stock to Deetjen or that Price agreed that anyone could sell it to Deetjen. There was, therefore, no mutuality of obligation between Deetjen and Price and there was no proof of a common intention between These parties to contract. See 7 Fla.Jur. Contracts § 9; Etheredge v. Barkley, 25 Fla. 814, 6 So. 861 (1889); Kuharske v. Lake County Citrus Sales, Inc., Fla.1949, 44 So.2d 641; and 7 Fla.Jur. Contracts §§ 14, 15 and 16.
The portion of the final judgment as it applies to John V. Deetjen is affirmed.
The appellant, Hewitt, claims reversible error was committed by the trial judge when he refused, based upon the attorney-client privilege, to permit an attorney, Griggs, to testify about certain matters during this trial. Hewitt says that oral statements concerning a partnership arrangement were made in his presence and that of Griggs and James H. Price. Hewitt proffered the testimony of Griggs and it did relate to an alleged partnership arrangement between Price and Hewitt. Hewitt contends that in such case an attorney may be required to testify and relies upon Dominguez v. Citizens' Bank & Trust Co., 62 Fla. 148, 56 So. 682 (1911); in which the Supreme Court said:
'It is doubtless the law that, where an attorney represents both or all the parties in a transaction, conversations and transactions between such parties in the presence of the attorney and each other are not privileged conversations, but such attorney may be required to testify to such conversations and communications; * * *.' 56 So. at 683.
See also 58 Am.Jur. Witnesses § 496.
Assuming arguendo, without finding that error was committed in refusing admission of this testimony in evidence, we are of the opinion that this matter would be governed by Fla.Stat. § 59.041,...
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