Upchurch v. Mizell

• Decision Date: 23 November 1905
• Citation: 50 Fla. 456,40 So. 29
• Parties: UPCHURCH v. MIZELL et al.
• Court: Florida Supreme Court

40 So. 29

50 Fla. 456

UPCHURCH v. MIZELL et al.

Florida Supreme Court, Division B.

November 23, 1905

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Jackson Mizell and William Mizell against John J Upchurch. Judgment for plaintiffs, and defendant brings error. Affirmed.

Rehearing denied February 3, 1906.

Syllabus by the Court

SYLLABUS

Where assignments of error are based on the introduction of evidence which was merely cumulative, and there was other competent evidence strongly tending to prove the fact which was sought to be established, and there was no evidence to the contrary, and the verdict could not reasonably have been otherwise than it was, the assigned errors will be regarded as harmless.

Where a witness is asked as to his knowledge of the financial condition and integrity of a person during the year 1898, and the evidence was pertinent and proper as to such condition and integrity during a part of the year 1898, and there was no specific objection in the court below to such question as being too broad, this court will not sustain the objection made here for the first time.

A remark of the trial judge upon an answer of a witness which was objected to, as follows: 'I think he answered it pretty well, gentlemen'--which remark was not objected to at the time, and no exception taken thereto, will not be considered here.

Where the record does not show any ruling of the trial court, or any objection or exception to a ruling, this court cannot regard an assignment based on the alleged action of the court.

Where an objection by the plaintiff was sustained to a certain question put to the defendant by his attorney, but it appears from the record that he was subsequently permitted to substantially answered the question, the action of the trial court in sustaining the objection will not be regarded as reversible error.

The defendant, Upchurch, was asked by his attorney whether it would have been a reflection upon Dyal & Upchurch if he (one of the plaintiffs) had declined to sell the mules on a credit. This question was objected to by the plaintiffs, and the objection sustained by the court, which action is assigned as error. We discover no error in this ruling.

The construction of a written instrument is a question for the court, and not for the jury.

Where the language of a declaration and of an instruction based thereon is not of a technical character, and when understood in its ordinary meaning there is no conflict between them and the meaning of the language of the instruction is within the meaning of the language of the declaration, such instruction is not erroneous on the ground of variance.

A person who buys goods upon a credit, thereby impliedly, if not expressly, represents that he intends to pay for them. If, therefore, he then has no such intention, and a fortiori if he has then a present intention not to pay for them, and conceals this fact from the seller, there is such a misrepresentation of a material fact as will entitle the seller to avoid the sale. This intention must be one existing at the time of the sale, and not merely one formed after the sale. It may be inferred from circumstances.

The principles of law established in Wheeler v. Baars, 33 Fla. 696, 15 So. 584, Watson v. Jones, 41 Fla 241, 25 So. 678, and Mizell v. Upchurch (Fla.) 35 So. 9, dealing with the doctrine of scienter in actions of deceit, are reaffirmed.

It is not erroneous for the trial court to refuse to give an instruction which is inapplicable to the evidence.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

Duncan U. Fletcher and Jno. W. Dodge, for defendants in error.

OPINION

HOCKER, J.

This is the second writ of error in this case. The decision of this court on the first consideration is reported in 35 South. pages 9 to 13, inclusive, which exhibits the two counts of the declaration, the demurrers thereto, and the rulings thereon. After the reversal here the plea of not guilty was filed on the 30th of July, 1904, a trial was had in November, 1904, and a verdict and judgment rendered for the present defendants in error.

The first five assignments of error are predicated upon rulings of the court admitting in evidence copies certified by the sheriff who held the originals of five different executions on judgments in favor of five different judgment creditors against B. H. Powell, which were offered in evidence by the plaintiffs.

These copies of executions were objected to by the defendants on following grounds: First, that said evidence is of itself incompetent for any purpose in this suit; second, that said evidence is not pertinent to any issue raised in this suit; third, that said evidence is not the best evidence of the said several matters sought to be introduced; fourth, that said evidence is not binding on the defendant in this suit, and is, so far as this defendant is concerned, 'res inter alios acta.' We do not think it necessary to pass on these assignments. The only object in introducing the instruments was to show that B. H. Powell was insolvent when the letter set up in the declaration, dated February 11, 1898, and addressed to J. Mizell & Bro., was written and delivered. There was other evidence on the part of the plaintiffs strongly tending to show that fact, and the fact of the insolvency of Powell was not controverted by the defendant. These instruments were, therefore, merely cumulative testimony, and the verdict of the jury without them on this point should not have been otherwise than it was. The errors, if any, were harmless. Jacksonville, M. P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, text 208, 16 So. 898.

The sixth assignment is based on the rulling of the court permitting Edward Williams, a deputy sheriff, to be asked the following question, viz.: 'I would like to show you these certified copies of executions against B. H. Powell, and you may say whether or not effort has been made to collect these executions by the sheriff.' For the reasons stated in considering the foregoing assignments, we do not deem it necessary to pass on this assignment, as the evidence elicited was merely cumulative upon a proposition not disputed.

The seventh assignment is based on the ruling of the court permitting plaintiffs to ask their witness J. B. Yerkes the following question, viz.: 'Did you know of his [referring to B. H. Powell] financial condition and his integrity as to his being entitled to trust and confidence as a business man in business transactions during the year 1898?' The witness had testified that he was manager of the Florida Hardware Company; that he had been in business between 18 and 19 years on Bay street, in Jacksonville, Fla.; that he knew B. H. Powell; that the latter's post-office address was Long Branch, Duval county; that he sold Powell goods covering a period of about 2 years; and then followed the question on which the assignment is based. The grounds of objection are. First, that it has no pertinency to the issues involved; second, it has not developed so far in the examination that the witness had a knowledge or opportunity to inquire about it sufficiently to authorize the witness to testify about it. The argument in the brief to support this assignment is that the inquiry should have been confined to a condition of things existing anterior to February 11, 1898. Certainly the evidence was pertinent as to Powell's financial condition on and before February 11, 1898, the date of the letter. This is admitted. But there was no specific objection to the question on the ground that it covered too much time or was too broad. We do not think that the judge erred in overruling the objections. The established rule in this court is that objections to testimony must be specific (Hoodless v. Jernigan [Fla.] 35 So. 656), and that an objection to evidence as a whole, part of which is competent, is properly overruled. Anthony v. State, 44 Fla. 1, 32 So. 818.

The eighth assignment is based on the refusal of the trial judge to grant the motion of defendant to strike the answer of plaintiffs' witness J. B. Yerkes in answer to the question: 'What was his [meaning Powell's] standing as a business man? Was he entitled to credit or otherwise?' The answer was: 'He was judgment proof, bankrupt, and insolvent.' The ruling of the court was: 'I think he answered it pretty well, gentlemen.' The objection was: 'We object to the witness answering in that way, when he was asked a specific question, to be answered 'Yes' or 'No,' under the general rules.' There was further colloquy between the court and the attorneys, who renewed the motion to strike the answer. Then the judge made the quoted remark. There was no objection made or exception noted to this remark. The witness had been asked several questions as to his knowledge of Powell's standing as a business man, had been instructed not to go into details, had stated that Powell's reputation, as being entitled to 'confidence,' etc., was bad, and was then asked by the court without objection: 'What was his standing as a business man? Was he entitled to credit or otherwise?' The answer that 'he was judgment proof, bankrupt, and insolvent' was in response to this question. All these questions and answers had reference to the year 1898, and there was no objection below that the answer was too broad. We therefore cannot consider it here. We discover no error under this assignment.

The ninth assignment of error was based on the alleged action of the court in striking that part of defendant Upchurch's testimony in which he stated that at the time he wrote the letter of February 11, 1898, nothing was said between Powell and witness 'about selling nules on a credit.' There was a good deal of colloquy, but we cannot...