Luria v. Bank of Coral Gables
| Citation | 106 Fla. 175,143 So. 598 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 18 October 1932 |
| Parties | LURIA v. BANK OF CORAL GABLES. |
Commissioners' Decision.
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
On petition for rehearing.
Petition denied.
For original opinion, see 142 So. 901.
COUNSEL Ross Williams, of Miami, and Groman & Rapoport of Allentown, Pa., for plaintiff in error.
Paul D McGarry, John J. Lindsey, and J. C. Sullivan, all of Miami for defendant in error.
A petition for rehearing was filed in this case, and, among the reasons urged for a rehearing, it is said: (1) That the opinion clearly predicates its affirmance on the assumption that the bank had repudiated the deed, and that the court overlooked and failed to consider the fact that the bank's minutes tendered in evidence were not admitted by the court; (2) that the court predicated its opinion in part on a plea that had gone out on demurrer, which plea alleged that and bank did not make, execute, issue, or assume the obligation. Upon another inspection of the transcript, we find that the minutes containing a resolution of repudiation of the contract, though copied in the transcript, were not permitted to go to the jury. However, the testimony of Fowler and of one T. H. Tumlin, who succeeded Fowler as cashier of the bank, makes it plain that there is nothing in the minutes of the board of directors to show an approval or ratification of the deed from Fowler to the bank. But for the oversight the court would have made no reference to the passage of a resolution condemning and repudiating the act of Fowler in executing and recording the said deed, and yet it would have come to the same conclusion. The affirmance of the judgment was not predicated on the assumption that the bank had repudiated the deed. The plaintiff failed to sustain the burden of showing a ratification of the deed by the bank with knowledge on the part of the bank that it contained a clause binding upon the bank to pay incumbrances on the property that it purported to convey.
It is a fact that a demurrer to the plea referred to in the petition was sustained by the lower court, but a casual inspection of other pleas that were permitted to remain in the record which are set out in the opinion of this court, will be sufficient to show that any fact that could have been received in evidence by virtue of such a plea, if it had not gone out on demurrer,...
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