Malsby v. Gamble

• Decision Date: 08 February 1911
• Citation: 54 So. 766,61 Fla. 327
• Court: Florida Supreme Court
• Parties: MALSBY et al. v. GAMBLE.

54 So. 766

61 Fla. 327

MALSBY et al. v. GAMBLE.

Florida Supreme Court, Division A.

February 8, 1911

On Rehearing, March 21, 1911.

Error to Circuit Court, Alachua County; J. T. Wills, Judge.

Action by Marvin Malsby and others against J. G. Gamble. Judgment of nonsuit, and plaintiffs bring error. Affirmed.

Syllabus by the Court

SYLLABUS

The action of replevin is not brought for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the possession of the property in dispute.

No evidence is admissible in an action which does not correspond with the allegations in the pleadings and tend to prove the issues.

It is the province and duty of the court to determine the relevancy and admissibility of evidence when the same is offered and objections are interposed thereto. If the relevancy of the evidence is not apparent at the time it is offered, it is properly rejected, though, if the party proposing it clearly makes the purpose for which it is offered appear, and promises to follow it up and connect it with other evidence which would make it material and relevant, the trial court being authorized to regulate the order of the introduction of evidence, may receive it conditionally; but its discretion in such a matter, either in receiving or rejecting evidence will only be interfered with by an appellate court where clearly abused.

If proffered evidence be irrelevant at the time it is offered it is not error to reject it, because other evidence may afterwards be given, in connection with which it would become relevant.

The mere indorsement of promissory notes, which stipulate that the ownership of and the title to certain machinery therein described should remain in the payee until the notes were paid, does not of itself vest the title to such machinery in the indorsee, so as to enable him to maintain an action of replevin for the same.

Where a written instrument, described as 'an indenture of lease,' is offered in evidence, 'together with the indorsements thereon, and assignment thereof on the back,' without any proof of such indorsement or assignment, the instrument and indorsement thereon being offered as an entirety, it is not error to sustain objections thereto and exclude such proffered evidence, even if such instrument might have been admissible if offered by itself, since such indorsement could not prove itself.

The mere fact that proffered evidence is not full and complete within itself, but forms only one link in the chain, so that it would have to be supplemented by other evidence in oder to avail the party offering it, may not render such evidence incompetent or inadmissible, but it should be clearly made to appear to the trial judge that the evidence so offered does form a material link in the chain.

Courts do not take judicial notice of the seals of private corporations, nor do such seals prove themselves; but, where it is shown or admitted that the instrument is signed for the corporation by its proper officers, the presumption is that it was duly executed, which presumption includes the authenticity of the seal used in its execution.

Where an instrument purporting to be executed by a corporation is offered in evidence, without any proof of the genuineness of the corporate seal, and it is neither shown nor admitted that such instrument was signed for the corporation by its proper officers, objections to the introduction thereof are properly sustained.

The mere fact that an instrument has been acknowledged for record does not make it admissible as evidence, in the absence of a statute to that effect. When such instrument has not been recorded in the public records, section 21 of article 16 of the state Constitution has no applicability.

To enable a plaintiff to recover in an action of replevin, it must appear from the evidence that he was entitled to the possession of the property sued for, or some of it, at the time the action was brought. Where no such right has been shown, no error is committed in excluding evidence tending to show that the defendant was in default in his payments for such property, even though, at the time such evidence was offered, the plaintiff had established the fact of the conditional sale of the property in question; the trial court being authorized to regulate the order of the introduction of evidence, and no abuse of the exercise of such discretion being made to appear.

Although a written instrument is not essential to transfer the title to personalty, and the rule is well established that, unless its character or governing statute requires it, a corporation may contract and bind itself without the use of its corporate seal in all cases in which individuals may bind themselves without the use of a seal, yet when a corporation undertakes to make a transfer of the title to personal property by a written instrument, under its corporate seal, the best evidence rule applies, and it is incumbent upon a plaintiff claiming to have thus acquired the title to prove the transfer so made.

Where a party takes and accepts a written instrument from another, wherein it is expressly stipulated that such instrument contains 'the only terms, condition and contract upon which the property described above is delivered to the lessee, and that the same cannot be varied, altered or controlled except by agreement in writing, signed by both parties hereto,' such an instrument is binding upon both parties, even though executed by only one of the parties. It is not permissible to both approbate and reprobate in asserting the same right in the courts.

Section 2189 of the General Statutes of 1906 expressly provides for a judgment against the plaintiff and the sureties upon his bond, in an action of replevin, in the event of nonsuit of the plaintiff, as upon the verdict recovered after a trial. The recital in the affidavit and bond of the value of the property, which value is fixed by the plaintiff, is at least prima facie evidence of the value. Where a judgment has been entered against the plaintiff and his sureties, upon his suffering a nonsuit, for the value as fixed in the affidavit and bond, and the plaintiff does not seem to have made any complaint as to the judgment in the court below, or brought the matter of value to the attention of the trial judge, even if not estopped by the recital in the affidavit and bond, he cannot be permitted to raise the question of value for the first time in the appellate court.

On Rehearing.

Section 21 of article 16 of the state Constitution has reference only to 'deeds and mortgages which have been proved for record and recorded according to law,' and has no applicability to any written instrument for the recording of which the law makes no provision.

There is no statutory provision now in force in this state for the recording of bills of sale, or any instrument transferring and assigning all of the right, title, and interest in and to chattels. Section 2516 of the General Statutes of 1906 relates to reservations of limitations as to the use of goods and chattels.

The recording of an instrument, not authorized or required by law to be recorded, is a vain and futile act, and before such an instrument is admissible in evidence, the execution thereof would have to be proved.

A petition for rehearing, which suggests nothing that has not been fully considered by the court in making its decision, will be denied; the proper function of a petition for a rehearing being to present to the court some point which it overlooked or failed to consider, by reason whereof its judgment is claimed to be erroneous.

A 'deed' in its broadest meaning includes all varieties of sealed instruments; while in its secondary and more common meaning signifies a writing under seal, conveying real estate (citing 2 Words & Phrases, 1919).

COUNSEL

Hampton & Hampton and W. S. Broome, for plaintiffs in error.

A. H. King and F. Y. Smith, for defendant in error.

OPINION

SHACKLEFORD J.

This is an action of replevin instituted by Marvin Malsby, doing business as Malsby Machinery Company, one of the plaintiffs in error, against J. G. Gamble, the defendant in error, to recover the possession of certain described machinery. The declaration is in the usual form, to which the defendant filed a plea of not guilty. The cause came on for trial before a jury, and, upon the court sustaining objections to certain proffered evidence of the plaintiff and refusing to admit the same, the plaintiff suffered a nonsuit, whereupon a final judgment was entered against him and the surety upon his bond, which is brought here for review, with a bill of exceptions, as is provided by section 1697 of the General Statutes of 1906. Sixteen errors are assigned, all of which, except the last two, relate to and are based upon the exclusion of evidence which the plaintiff sought to introduce. We shall discuss such as merit treatment.

As we said in Johnson v. Clutter Music House, 55 Fla. 385 text 388, 46 So. 1, text 2: 'The action of replevin is not brought, like the action of assumpsit, for example, for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the property in dispute.' This being true and the issue being thus restricted, it necessarily follows that evidence which would be proper and admissible in such an action as that of assumpsit might be improper and inadmissible in an action of replevin. In other words, no evidence is admissible in an action which does not correspond with the allegations in the pleadings and tend to prove the issues. Knight v. Empire Land Co., 55 Fla. 301, 45 So. 1025; Seaboard Air Line Ry. v. Harby, 55...