Smith v. Dowling

• Decision Date: 06 June 1921
• Parties: SMITH v. DOWLING et al.
• Court: Florida Supreme Court

89 So. 315

81 Fla. 867

SMITH v. DOWLING et al.

Florida Supreme Court

June 6, 1921

Rehearing Denied June 26, 1921.

Suit by J. H. Dowling and another against James Smith and others. Decree for complainants, and defendant named appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Unsigned and unverified pleas held inadmissible in action for contribution between sureties. Neither evidence of the contents of pleas nor the pleas themselves of defendants, not signed or sworn to, in an action on a bond upon which they are sureties, are admissible as evidence against such defendants who are complainants in a subsequent suit between such sureties brought for the purpose of requiring certain of them, who are defendants in the latter suit, to contribute each his ratable proportion of the obligation to complainants who have paid the amount in full upon the grounds, first that if offered for the purpose of adding probative force to the evidence of defendants such evidence is inadmissible because in the nature of self-serving declarations, and second, if offered to discredit complainants in the latter action it is inadmissible, because such pleas are neither signed nor sworn to by them, and are therefore ineffectual to estop them from assuming a contrary attitude.

What acts by direction of another are not acts of an agent stated. 'The rule is well settled both in England and in the United States that an act done by a person in the presence of another, and by his direction or with his consent, as the signing or execution of a sealed instrument, for example, is not regarded as the act of an agent, but is the direct act of the person by whose direction it is done.'

Decree based upon sufficient but conflicting evidence will not be reversed unless clearly erroneous. Where testimony is conflicting but there is evidence sufficient to support the finding of the chancellor upon questions of fact the decree will not be reversed unless it clearly appears to be erroneous.

Appeal from Circuit Court, Suwannee County; M. F Horne, judge.

COUNSEL

J. B. Johnson, of Live Oak, for appellant.

McCollum & Clark, of Jacksonville, for appellees.

OPINION

WEST, J.

The object of this suit is to require certain sureties upon a bond to contribute their ratable proportions of the obligation to other sureties who have paid the full amount for which all the obligors were liable.

The bond was given by the Live Oak Citizens' Bank with certain individuals who were its directors as sureties, to secure to the city of Live Oak the payment to it on demand any and all sums of money which the city then had or might thereafter place on deposit in said bank.

The bill alleges the execution of the bond, the insolvency of the bank, its being placed in the hands of a receiver for liquidation, its failure to pay said city moneys on deposit with it to the credit of the city except a small proportion thereof paid by the receiver, the payment of the balance of the amount due the city by complainants, who were sureties on the bond, after an action at law had been instituted by the city on the bond to recover from the several sureties, complainants and defendant in this suit, the amount due the city by the insolvent bank.

The bill further alleges that complainants had paid the full amount due upon the bond, that defendants had paid no part of same, and that complainants were entitled to contribution and reimbursement from defendants, their cosureties, the ratable proportion of the defendants, depending in amount upon the number who were solvent and able to respond who were within the jurisdiction of and subject to the processes of the court.

The bill waived answer under oath, and prayed that an accounting be taken, that each defendant be required to show whether he is or is not solvent, and that each defendant be decreed and required to pay to complainants such amount as shall be found to be due upon the obligation as his ratable proportion thereof, together with costs and attorney fees incurred on account of same, and for general relief.

Decrees pro confesso were taken against all the defendants except the defendant James Smith, who answered the bill. His answer is contained in two short paragraphs, by which he denies that he signed and executed the bond described, denies that he is a surety on the bond, and denies that the bond sued on is his bond.

Evidence was taken upon the issue made by this answer, and upon a final hearing the decision was in complainants' favor, and final decree was entered adjudging one of the defendants to be beyond the reach of the process of the court, others to be insolvent, that complainants were entitled to contribution and reimbursement from the defendant James Smith, and that complainants do have and recover from him on account thereof the sum found to be due by him. The final decree recites that decree pro confesso was entered against each of the other defendants. To review this decree this appeal was taken.

The first and second assignments of error raise questions of similar character. The first challenges a ruling of the court sustaining objections to a question propounded to the defendant respecting the contents of the pleas interposed by him and other defendants in the action at law, and the second challenges a ruling of the court sustaining objections to the introduction in evidence of such pleas in behalf of defendant. The pleas were joint pleas of complainant and defendants, all of whom were defendants in the action at law.

There is no merit in either of these assignments. If the evidence of...