Scott v. National City Bank of Tampa

• Decision Date: 27 February 1933
• Citation: 146 So. 573,107 Fla. 818
• Parties: SCOTT v. NATIONAL CITY BANK OF TAMPA[*]
• Court: Florida Supreme Court

146 So. 573

107 Fla. 818

SCOTT v. NATIONAL CITY BANK OF TAMPA^[*]

Florida Supreme Court

February 27, 1933

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by Fletcher Scott against the National City Bank of Tampa. To review an order granting a new trial, after verdict for plaintiff, plaintiff brings error.

Affirmed.

BUFORD J., dissenting.

COUNSEL

C. W. Laurence, Jr., and Henry E. Williams, all of Tampa, for plaintiff in error.

McKay Withers & Ramsey, of Tampa, for defendant in error.

OPINION

PER CURIAM.

In an action in the circuit court brought by Scott against the bank to recover for the alleged conversion of corporation stock that had been placed in the bank as collateral security for a loan, Scott obtained a judgment and the trial court granted a new trial, which order was, on writ of error under the statute, affirmed. Scott v. National City Bank of Tampa (Fla.) 139 So. 370; Id. (Fla.) 142 So. 650; Id. (Fla.) 143 So. 444.

The motion for new trial herein included grounds that the verdict is contrary to law, contrary to the evidence, is excessive that the court erred in stated rulings on testimony concerning the market price of the stock alleged to have been converted; in charges on the measure of damages, and other charges.

A motion for new trial should be granted by the trial court if any ground of the motion considered with the whole record in the cause warrants the granting of the motion. Likewise on writ of error taken under the statute to an order granting a new trial in an action at law, the order should be affirmed if any ground of the motion for new trial, considered with the entire record in the cause, sustains the order, even though the trial court states one or more grounds of the motion as being the basis for the order and such ground or grounds be held by the appellate court to be sufficient to sustain the order. The order covers all grounds of the motion, and the specification of one or more grounds as being the basis or the reason for the answer does not modify the legal effect of the order as covering all grounds of the motion. If in specifying the grounds of the motion on which a new trial is granted, the other grounds of the motion are impliedly held by the trial court to be insufficient to sustain the order, a writ of error taken to the order granting a new trial authorizes the appellate court to 'review the said order,' and as the order covers all the grounds of the motion, the appellate court should affirm the order if any ground of the motion considered in the light of the entire record in the cause is legally sufficient to sustain the order, no matter how many other grounds of the motion are by the trial court or by the appellate court held to be insufficient to sustain the order granting a new trial.

The order granting a new trial is as follows:

'The above entitled cause having come on this day for hearing on the motion for a new trial filed by the defendant, and the Court having heard argument of counsel, and being of opinion that while there was no error in the charge of the Court with respect to the measure of damages, it appearing to the Court that under the promissory note given by the plaintiff to the defendant, to which the certificate for 300 shares of stock in Clarence Saunders Corporation was attached and pledged as collarteral, it was provided that the pledgee, in the event of default of the pledgor, under the terms of said note should have the right to sell the said collateral without notice to the pledgor, and the Court being of opinion that said condition of said note constituted a valid waiver on the part of the pledgor of the statutory provision for ten days' notice of sale of the collateral, and being otherwise fully advised in the premises, it is thereupon considered and ordered:

'1. That the said motion of the defendant for a new trial in said cause be and the same hereby is granted, and the verdict of the jury found in this cause is hereby set aside.

'2. That the exception of the plaintiff to the ruling of the Court in the premises, is hereby noted, and the plaintiff is allowed sixty days after the date of this order in which to prepare and present his bill of exceptions.'

Chapter 4376, Acts of 1895, enacted:

'That in all cases in which any contract, obligation, security or evidence of indebtedness shall be pedged or deposited as security for the payment of any indebtedness, the person or corporation to whom the same may be pledged, hypothecated or transferred, and their assigns, shall have the power to sell the same, in such manner, and on such terms as may be agreed upon in writing by the parties at the time of making the pledge, and such sale shall vest in the purchaser or purchasers, the title in and to said pledges, collaterals or securities.'

Chapter 5905, Acts of 1909, added to the section of chapter 4376 the following:

'Provided, ten days' notice of said sale be given to the party pledging the same.' See section 6931(4845), Comp. Gen. Laws.

The purpose of the statute as amended is to state the law of this state to be that a 'person or corporation' to whom any contract, obligation, security, or evidence of indebtedness shall be pledged or deposited as security for the payment of any indebtedness 'and their assigns, shall have the power to sell the same' as may be agreed upon in writing at the time of making the pledge; 'provided, ten days' notice of said sale be given to the party pledging the same.' See Black v. First Nat. Bank of Brooksville, 97 Fla. 19, 114 So. 458, 119 So. 521. The statutory requirement of ten days' notice of a sale cannot legally be waived when making the pledge. In this case the writing evidencing the pledge purports to waive notice of sale to the pledgor, and such attempted waiver is inoperative. A sale without giving required notice to the pledgor under such an instrument of pledge is not authorized by law. The ground of the motion for new trial indicated by the trial court as the basis or reason for granting a new trial is untenable, but there were other grounds of the motion for new trial that are material and should be considered.

Section 4615(2905), Compiled General Laws, authorizes a writ of error to 'the entry of an order granting a new trial at law,' and provides that the appellate court 'shall review the said order.' The order is predicated upon all the grounds of the motion for new trial, even though the trial court specifies one or more grounds of the motion for new trial as being the reason for the order. An order granting a motion for new...