Wicker v. Board of Public Instruction of Dade County

• Decision Date: 01 August 1947
• Citation: 31 So.2d 635,159 Fla. 430
• Parties: WICKER et al. v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY.
• Court: Florida Supreme Court

31 So.2d 635

159 Fla. 430

WICKER et al. v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY.

Florida Supreme Court

August 1, 1947

Appeal from Circuit Court, Dade County; Marshall C wiseheart, judge.

Halsted L Ritter, of Miami, for appellants.

John J Lindsey and Grady C. Harris, both of Miami, for appellee.

BUFORD, Justice.

The appeal brings for review judgment of the Circuit Court of Dade County entered pursuant to motion granted for a directed verdict.

On the trial jury was waived. At the close of plaintiffs' testimony defendants moved for a directed verdict which motion was granted and thereupon the Court entered its judgment in favor of the defendants.

This is the second appearance of this litigation in this Court. See Wicker v. Board of Public Instruction, etc., 156 Fla. 7, 22 So.2d 255. On that appeal we held:

'1. A board of public instruction has authority to purchase lands for school purposes.

'2. A board of public instruction which accepts deed to land for school purposes and fails to pay therefor may be estopped to deny liability for purchase price. Comp.Gen.Laws 1927, § 561.

'3. Promissory notes waiving demand, notice of nonpayment, and protest, and providing for 8 per cent. interest and attorney's fee for collection, executed pursuant to contract by board of public instruction for purchase of land for school purposes, were void as independent obligations.

'4. Notes executed pursuant to contract by board of public instruction for purchase of land for school purposes, though they were void as independent obligations, had relevancy as evidence of agreed purchase price of land in action on obligation arising as result of executed contract.

'5. Though notes executed pursuant to contract by board of public instruction for purchase of land for school purposes were void as independent obligations, their endorsement transferred all of endorser's rights and remedies, including cause of action under executed contract.'

On the going down of the mandate the defendants filed nine pleas.

The second plea was: 'That it never promised as alleged.'

The third Plea was 'that the alleged notes and contract described in and copies of which are appended to and made a part of the plaintiffs' declaration as Exhibits A, C, D, E, F, G, H and I, are not its deed and neither thereof is the deed of this defendant.' The fifth plea was: 'That the alleged contract and notes described in, and copies of which are appended to the plaintiffs' declaration are not under seal; that each, all and every of the sums of money mentioned and described in said documents by the terms thereof, and each of them, became due and payable on the twenty-eighth day of September, 1929, more than five years next preceeding the commencement of the plaintiff's suit and therefore, each, all and every thereof and the plaintiffs' right and claim and cause of action thereunder and because thereof are barred by the statutes of limitation in such cases made and provided and particularly Section 95.11(3), Florida Statutes 1941 [F.S.A.] and this defendant pleads said Statutes of Limitation in bar the plaintiffs' right to recover.'

There were other pleas, replications and rejoinders which are not necessary to be discussed here.

During the progress of the trial plaintiffs offered in evidence a photostatic copy of a copy of the original contract which original contract was alleged to have been executed by Whitphel Properties, Inc., a Florida corporation, and the Board of Public Instruction for the County of Dade as secondary evidence of the contract under which it was alleged that the deed from Whitphel Properties, Inc., to the Board of Public Instruction of Dade County was executed. Defendants objected to the introduction of such photostatic copy on the ground that it was not the best evidence available to prove the contents of the contract. It had been shown by the evidence that when the contract was signed by the parties it was executed in duplicate and one of the duplicate executed contracts was delivered to the Board of Publc Instruction and the other to Whitphel Properties, Inc. The plaintiff alleged that the duplicate delivered to Whitphel Properties, Inc. had been lost and could not be found and procured an order to the defendants to produce the duplicate which had been delivered to the Board of Public Instruction of Dade County. The defendants, answering, said that they did not have the executed contract and could not produce the same. Plaintiff then showed that the duplicate executed contract which had been delivered to Whitphel Properties, Inc., had been turned over to and delivered to A. C. Whiting when Whiting acquired the notes involved and the contract from Whitphel Properties,...