Seaver v. Stratton

• Decision Date: 18 December 1937
• Citation: 183 So. 335,133 Fla. 183
• Parties: SEAVER et al. v. STRATTON.
• Court: Florida Supreme Court

183 So. 335

133 Fla. 183

SEAVER et al. v. STRATTON.

Florida Supreme Court, Division A.

December 18, 1937

On Rehearing June 15, 1938.

ELLIS C.J., dissenting, and BROWN, J., dissenting on rehearing.

Action by Ethel B. Seaver, a married woman, by her next friend Vernon C. Seaver, and another against Francis A. Stratton. Order granting a new trial after a verdict for plaintiffs and plaintiffs bring error.

Reversed with directions.

COUNSEL

John M. Murrell, Wm. H. Malone, and L. J. Cushman, all of Miami, for plaintiffs in error.

Maxwell Baxter, of Ft. Lauderdale, and Wiseheart & Wiseheart, of Miami, for defendant in error.

OPINION

TERRELL Justice.

In April, 1926, Ethel B. Seaver and her husband, Vernon C. Seaver, sold a certain yacht named 'Romance' to Francis A. Stratton for $25,000. Of this consideration, $18,611.11 was paid in cash and the balance of $6,388.89 was paid with a note executed to Stratton by Alfred D. Marsh and Marie D. Marsh, his wife, in 1925, as part payment for some real estate.

The note not having been paid the Seavers brought this action on February, 1935, against Stratton to recover the face of the note with interest. After much pleading not essential to detail, the cause went to trial on the issue of whether said note was accepted by the Seavers as absolute payment for the balance due on the yacht or as collateral security therefor, with the understanding that, if not paid by the Marshes, Stratton would pay the amount named in the face of it to Seaver.

There was a third plea interposing the bar of the statute of limitations to which the plaintiffs proffered replications alleging that Stratton was out of the state when the cause of action accrued but that it was instituted within three years after his return to the state. On the issues so made, the cause went to trial. At the close of plaintiff's testimony, motion for a directed verdict was denied. At the conclusion of the trial, the jury returned a verdict for the plaintiffs for the face of the note, with interest. Motion for new trial was made and granted, and to this order the plaintiffs took writ of error.

Several questions are urged for reversal, but all turn on the answer to the question of whether the Marsh note was accepted by the Seavers as absolute payment or as collateral security for the balance due on the yacht, with the understanding that, if not paid at maturity, Stratton would pay the face of it. The evidence shows that the Seavers made a straight out sale of the yacht to Stratton and that he was to pay the full consideration for it. There is nothing to indicate that a trade or exchange of properties as against a sale was intended. Vernon C. Seaver testified positively that the Marsh note was taken as collateral to secure payment of the balance due on the yacht, with the understanding that Stratton would pay the face of it if it was not paid at maturity. Seaver's testimony is corroborated by the fact that the Marsh note was given as part payment on some real estate, that two interest payments on it had been permitted to lapse, and that the boom period was past. No part of the mortgage securing said note was assigned to Seaver, Stratton had it (the mortgage) foreclosed, and later brought a common-law action to recover on the note. Seaver never pushed Stratton for the note as long as he (Stratton) was making an effort to collect it and there is substantial evidence which shows that both Seaver and Stratton considered the latter to be responsible for recovering on the note if it was not paid promptly.

To overcome the case made by Seaver, Stratton contends that the note was indorsed by him without recourse and was so accepted by Seaver; that, coincident with delivery of the note, a bill of sale was executed and delivered with the yacht which symbolized receipt of the consideration and satisfaction therefor; that the Seavers agreed with Stratton that he (Stratton) should foreclose the mortgage; and that each should pay one-half the expense, one-half interest in the land covered by the mortgage was conveyed to Seaver & Co., a statutory trust for which Seaver was trustee and owned most of the interest. In the common-law action, one of the notes was withdrawn with Seaver's consent. Stratton denied that the note was given as collateral and testified that it was given as payment in full.

It was the function of the jury to take this evidence, and the facts brought out by it and from them deduce their verdict. The trial court has a broad discretion in the matter of setting the verdict aside and granting a new trial if error is shown to have been committed in the trial or some injustice done. To warrant an appellate court in reversing such an order, it must clearly appear that some settled principle of law was violated or that there was an abuse of discretion resulting in injustice.

The order granting the new trial shows that it was granted because the verdict was deemed to be contrary to the law and the evidence and because of error committed in denying defendant's motion for directed verdict at the conclusion of plaintiff's testimony. The motion for directed verdict was predicated on the following grounds:

'1. Because the testimony of the plaintiff clearly does not preponderate and prove a cause of action against the defendant.

'2. Because the evidence shows that the plaintiffs gave to the

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