Wilson v. Maddox

• Decision Date: 06 April 1929
• Parties: WILSON v. MADDOX.
• Court: Florida Supreme Court

121 So. 805

97 Fla. 489

WILSON v. MADDOX.

Florida Supreme Court, Division A.

April 6, 1929

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Action by C. C. Wilson against J. M. Maddox. Judgment for defendant and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Plea of failure of consideration in action on note places burden upon plaintiff to show consideration. The plea of failure of consideration in action on a promissory note places the burden upon the plaintiff of showing a consideration for the note.

New trial should not be granted if jury could have found verdict from conflicting evidence submitted. Where there is conflict in the evidence, new trial should not be granted if jury, as reasonable men, could have found verdict rendered from evidence submitted.

Verdict should not be set aside, where question merely concerns credibility of witnesses. A verdict should not be set aside where the question is purely one of credibility of witnesses.

Verdict supported by any evidence will not be set aside as against evidence unless jury were improperly influenced by outside considerations. Where there is any evidence to support the verdict it will not be set aside as against the evidence unless it may well be assumed that jury were improperly influenced by considerations outside evidence.

Evidence of failure of treatment of defendant's wife justified verdict for defendant sued on note conditioned on successful treatment. In action on note executed to physician on condition that he would effect successful treatment of the eye of defendant's wife, evidence of failure of treatment held to justify verdict for defendant.

COUNSEL

E. M. Knight, of Lakeland, for plaintiff in error.

Johnson Bosarge & Allen, of Bartow, for defendant in error.

OPINION

ELLIS J.

C. C. Wilson brought an action against J. M. Maddox upon a promissory note executed by the latter payable to the former in the sum of $600. It was dated August 14, 1923, and payable 60 days after date.

The defendant pleaded that the consideration for the note was the plaintiff's services rendered to the defendant's wife in the treatment of an ailment of the eye from which she suffered. It was averred that the plaintiff is a physician and agreed at the beginning of treatment that it would effect a cure of the ailment; that the treatment continued for some time, and the plaintiff pronounced as cured the disorder from which the defendant's wife suffered and for which she was treated; that the defendant executed the note at the plaintiff's request and upon his representation that the disease was cured; that the note was executed on the condition that the defendant's wife was cured of the disease; that the plaintiff's treatment did not effect a cure.

Issue was joined upon the plea, and the jury found for the defendant, and judgment was duly entered, to which the plaintiff took a writ of error.

There are two assignments of error, each of which present the same question, viz., that the verdict is not supported by the evidence.

The evidence justified the jury in finding that the following state of facts existed: That the plaintiff is a physician. That the defendant's wife suffered from some malignant disorder of the eye. That the defendant consulted the plaintiff about it and the latter agreed that if she was placed upon his treatment that his treatment would effect a cure. This was accordingly done, and the treatment continued for about nine months. That during that time the plaintiff had also given the defendant's daughter 'some electric treatments,' for which he charged $100. At the end of that period of time the plaintiff told the defendant that his wife 'will soon be well,' and that her 'eye is cured,' whereupon the defendant asked the plaintiff what was the amount of the bill. The latter replied that it was $1,000, of which $100 was for treatment given the daughter. The defendant paid $400 and gave the note for the balance. That the plaintiff went away on a vacation, and when he returned the defendant and his wife went to the plaintiff again. The disease was not cured; there was a sore larger than when the treatment began. The plaintiff said the disease was not cured and requested defendant to bring his wife back. The plaintiff then left the room in his apartment where the conversation occurred and did not return. That the defendant and his wife after waiting a while left, and did not return for further treatment of the wife's ailment.

The doctrine of the application of payments does not apply. If the evidence offered in defendant's behalf is true he owed nothing on account of...