Scott v. National City Bank of Tampa
| Decision Date | 30 September 1932 |
| Citation | 107 Fla. 818,143 So. 444 |
| Parties | SCOTT v. NATIONAL CITY BANK OF TAMPA. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.
On petition for rehearing.
Rehearing denied.
For former opinion, see 142 So. 650, which affirmed on rehearing 139 So. 370.
See also, 139 So. 367.
COUNSEL C. W. Lawrence, Jr., and Henry E. Williams both of Tampa, for plaintiff in error.
McKay Withers & Ramsey, of Tampa, for defendant in error.
In this case there has been filed a petition for rehearing on the judgment entered after rehearing had been granted and exercised pursuant to the original disposition of the case here.
Petitioners contend that the order granting the new trial should be reversed because, when motion for new trial came on to be heard by the trial judge and in rendering his judgment thereon, the learned judge said, '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 collateral 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. * * *'
The petitioner contends that the construction by the trial judge of the statute under consideration was erroneous, and that by affirming the order granting a new trial this court has approved the construction of the effect of statute as stated by the trial judge in the preamble to his order. Such is not the case. In the original opinion, the case was treated on the theory that conversion was alleged and was admitted by the plea of set-off, but that the plaintiff had failed to establish resulting damage.
On rehearing we held in effect that there was some, but unsatisfactory, proof of damage, and that, because of the unsatisfactory character of such proof, the motion for new trial was not erroneously granted, although not granted on that ground.
We have not and do not now determine the question as to whether or not the notice required by the provisions of section 4845, Revised General Statutes (section 6931, Comp. Gen. Laws), may be waived by stipulation contained in the original contract under which collateral security is deposited and held.
Rehearing is denied.
In this case the order on motion for new trial presents but one question, and that is a question of law, which is, 'May a...
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...of Coral Gables, 106 Fla. 175, 142 So. 901, 143 So. 598; Scott v. National City Bank of Tampa, 107 Fla. 818, 139 So. 370, 142 So. 650, 143 So. 444, 146 So. 573; Preacher & Co. v. Sarasota Bay Hotel Co., 112 Fla. 432, 150 So. 590. The presumption on appeal is that the order granting a new tr......
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