Jacksonville American Pub. Co. v. Jacksonville Paper Co.

• Decision Date: 02 August 1940
• Citation: 197 So. 672,143 Fla. 835
• Parties: JACKSONVILLE AMERICAN PUB. CO. v. JACKSONVILLE PAPER CO.
• Court: Florida Supreme Court

197 So. 672

143 Fla. 835

JACKSONVILLE AMERICAN PUB. CO. v. JACKSONVILLE PAPER CO.

Florida Supreme Court

August 2, 1940

Certiorari to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by the Jacksonville Paper Company against the Jacksonville American Publishing Company to recover balance allegedly due on open account. To review circuit court judgment affirming judgment of the civil court of record in plaintiff's favor, defendant brings certiorari.

Petition for certiorari denied.

COUNSEL

J. A. Fitzsimmons, of Jacksonville, for petitioner.

Ragland Kurz & Layton, of Jacksonville, for respondent.

OPINION

BUFORD, Justice.

Petition for certiorari has been presented here, seeking to have quashed the judgment of the circuit court, affirming the judgment of the civil court of record finding in plaintiff's favor.

The purpose of certiorari issued by the Supreme Court to the circuit court is to determine whether the judgment sought to be reviewed is illegal or is essentially irregular or prejudicial and materially harmful to the party complaining. American Railway Express Co. v. Weatherford, 86 Fla 626, 98 So. 820. The subject matter of the suit is not here reinvestigated, tried and determined upon the merits generally as upon appeal or writ of error. Brinson v Tharin, 99 Fla. 696, 127 So. 313.

Where a civil court of record directs a verdict, and a judgment on the directed verdict is affirmed by the circuit court, the Supreme Court may review the record on certiorari. Jones v. General Accident, etc., Assurance Corporation, 103 Fla. 787, 137 So. 889. Certiorari does not issue as a matter of right but rests in the sound discretion of the superior Court. First National Bank v. Gibbs, 78 Fla. 118, 82 So. 618; Gilbert v. State, 98 Fla. 599, 124 So. 1. Certiorari will not issue where it would be vain and useless and result in no change in the disposition of the cause. General Motors Acceptance Corporation v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621.

The Jacksonville Paper Co. filed its declaration against the Jacksonville American Publishing Co., in the Civil Court of Record for Duval County, for a balance of $187.75 due on open account, together with interest from February 8, 1938. The declaration consisted of four common counts for: (1) Money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant. (2) Money received by the defendant for the use of the plaintiff. (3) Money found to be due from the defendant to the plaintiff on accounts stated between them. (4) Work done and materials furnished by the plaintiff to the defendant. Bill of particulars was attached to the declaration, which after motion by defendant, was made more specific.

To the declaration defendant filed pleas of (1) never was indebted as alleged, and (2) that the alleged cause of action did not accrue within three years before this suit.

Plaintiff joined issue on the first plea, and filed replications to the second plea, which replications alleged in substance that: (1) Before the statute of limitations had run upon the cause of action, defendant promised to pay said indebtedness. (2) Before the statute of limitations had run upon the cause of action, defendant promised to pay said indebtedness in writing. (3) Within three years from the date of filing this suit, defendant promised to pay said indebtedness. (4) Within three years from date of filing this suit, defendant promised to pay said indebtedness in writing.

The court, upon demurrer, held these replications bad, and filed the following written opinion expressing his views for the ruling:

'The court is of the opinion that the 1st replication is defective because it does not allege that the new promise was within three years before the institution of this suit and that the 2nd replication in subject to the same objection because the declaration is upon the original indebtedness, not upon the written promise set up in the 2nd replication. If the allegations of the 3rd replication are added to the 1st and 2nd replications, the court will hold them to be good.

'The 3rd replication is bad because it does not allege a new promise in writing nor a new oral promise within three years after the cause of action accrued. The court is of the opinion that the 4th replication is a departure in pleading and that if the plaintiff wishes to rely upon a new promise in writing made after the statute of limitations had run, the declaration must contain a count based upon the new promise in writing.

'The law as decided by our Supreme Court appears to be:

'1st. That a new promise, though oral, tolls the statute of limitations, if made before the cause of action is barred. (Welles-Kahn Co. v. Klein, 81 Fla. 524, ), and that the plaintiff may declare upon the original indebtedness, and, if the statute of limitations is pleaded, reply the new promise (Vinson v. Palmer, 45 Fla. 630 ).

'2nd. That after the statute has run, there must be an acknowledgment or new promise in writing, and that this is the cause of action upon which the plaintiff must sue. (Section 4650 C.G.L., and Coker v. Phillips , 103 So. 621.)

'An order will be entered sustaining the demurrer and allowing the plaintiff 10 days to file amended replications.'

Thereafter plaintiff filed amended replications to which demurrer and motion to strike were addressed. At the hearing, after leave granted, plaintiff further amended the replications, which were allowed to stand. The further amended replications were: (1) That within three years of the accrual of the cause of action herein and within three years prior to the commencement of this suit, the defendant did promise to the plaintiff to pay said debt. (2) That within three years of the accrual of the cause of action herein and within three years prior to the commencement of this suit, the defendant did promise to the plaintiff in writing to pay said debt.

Defendant filed two rejoinders to the further amended replications, as follows:

'1. That the cause of action herein sued upon accrued September 1, 1934, and this suit was commenced on October 25, 1938, more than three years from the date of the accrual of the cause of action declared upon herein, as appears from the declaration and bill of particulars filed herein, and defendant for itself, or by its authority, did not promise, or pay, or authorize any agent to pay, or promise to pay, the plaintiff any sum, or sums, of money upon the alleged indebtedness within three years from the accrual of the alleged cause of action; and defendant avers that any payment made or oral promise given, either by the defendant or its authorized agent, within three years from the accrual of the alleged cause of action was insufficient to interrupt the operation of the statute of limitations upon the alleged indebtedness and thereby avoid defendant's plea of said statute of limitations.

'2. That the cause of action herein sued upon accrued September 1, 1934, and this suit was commenced on October 25, 1938, more than three years from the date of accrual of the cause of action declared upon herein, as appears from the declaration and bill of particulars filed herein, and defendant for itself, or by its authority, did not pay, or promise in writing to pay, or authorize any agent on its behalf to pay or promise in writing to pay the plaintiff any sum or sums of money upon the alleged indebtedness, within three years from the accrual of the alleged cause of action, and defendant avers that any payment made, or written promise given by any agent was unauthorized by it and avers that any written promise, if given by it of any agent on its behalf, said promise was conditional and not such a written promise which would acknowledge the debt and toll the operation of the statute of limitations pleaded by defendant, and further avers that any written promise, given by defendant and relied upon by plaintiff, would constitute a different cause of action than declared upon herein by plaintiff.'

Trial was had, after which plaintiff moved for a directed verdict in its behalf. Defendant then moved for a directed verdict in its behalf on the ground that it affirmatively appears from the evidence that witness John Othen had no authority from the Board of Directors of defendant corporation to extend the period of corporate liability or to pay a debt barred by the statute of limitations, and that the burden was on plaintiff to prove such authority existed and was exercised.

The court ruled that this burden was on plaintiff, but that the only way in which a corporation could act was through its agents, and that the court was of the opinion that plaintiff had proved a prima facie case under the general issue.

Directed verdict for the full amount of $187.75, together with interest at 8% from February 8, 1938, was returned by the jury, upon which final judgment was entered.

Motion in arrest of judgment and motion for new trial were denied, and writ of error was taken to the circuit court.

Thereafter the Circuit Judge entered an order affirming the judgment, without any written opinion.

It is contended that since plaintiff's declaration consisted entirely of the common counts, which were based upon an implied contract, and that since the further amended replications of plaintiff alleged a promise of the defendant to pay the debt, which was an express contract, this constituted a departure in pleading.

In answering this contention we refer first to the case of Whittington v. Stanton, 63 Fla. 311, 58 So. 489, 490, where we held:

'Under a declaration upon an account stated, the cause of action is the agreement of the parties to pay the amount found to be due upon the accounting, and this may...