Winfield v. Truitt
| Decision Date | 22 January 1916 |
| Court | Florida Supreme Court |
| Parties | WINFIELD et al. v. TRUITT. |
Rehearing Denied Feb. 15, 1916.
Error to Circuit Court, Dade County; H. Pierre Branning, Judge.
Suit by J. G. Truitt against T. A. Winfield and others, copartners under the firm name of the Winfield Packing Company. Judgment for plaintiff, and defendants bring error. Affirmed.
Syllabus by the Court
A demurrer to a declaration as a whole is properly overruled where the declaration contains common counts.
Where several persons are sued as copartners under a certain name and to the declaration they interpose a plea that they are not copartners, but stockholders in a corporation of that name, which had been duly organized under the laws of the state, and that it had changed its name from time to time under authority of law, and that when the cause of action accrued the name of the corporation was not that under which the parties were sued, and it appears from the record, in the form of a stipulation between the parties, that after the corporation was organized, and letters patent issued, and a certified copy of the charter filed and recorded in the office of the clerk of the circuit court for the county in which the corporation was to have its principal place of business, but that the treasurer of the corporation had failed to file in the office of the secretary of state and the office of clerk of the circuit court of the county in which the corporation was to have its principal place of business, duplicate affidavits that 10 per cent. of the capital stock of the corporation had been subscribed and paid, and from the evidence it appeared that when the suit was instituted the corporation bore the name under which the stockholders were sued as partners, held, that the plea was not sustained, and that the persons sued were liable as members of a general partnership, under section 2652 of the General Statutes of 1906 of Florida.
The provision of section 2652 of the General Statutes of 1906 of Florida requiring a corporation organized in this state through its treasurer to make and file in the offices designated therein, duplicate affidavits that 10 per cent. of the capital stock has been subscribed and paid, is neither remedial nor penal, but requires the act as showing good faith in the organization of the corporation and that the incorporators intend to do business under the charter and not as individuals. A failure to file the affidavits does not create a liability against the incorporators and stockholders for the debts incurred in the name of the corporation, but such liability having attached to them as individuals it continues as such against them until liquidated or settled.
Where persons have incurred such liability, it is unnecessary in a declaration upon such cause of action to allege that they organized a corporation, but failed to comply with the statutory requirement as to the recording of the charter or the filing of the duplicate affidavits.
Where an immaterial issue is presented, but it appears from the record that the jury passed upon the merits of the case and a right judgment was entered, a new trial should not be ordered because the immaterial issue should have been found in favor of the party complaining.
Whether incorporators and stockholders of a corporation which has failed to comply with the provisions of section 2652, Gen St. 1906, are liable for obligations arising ex delicto incurred in the corporate name, not determined in this case.
The trial court commits no error in refusing charges, although they announce correct principles and are applicable to the evidence, if such charges have been already given by the court in substance and are embraced in the general instructions.
Requested instructions inapplicable to the evidence are correctly refused.
An instruction which unqualifiedly imposes the duty upon a consignee of fruit under contract of purchase, to accept the same upon arrival at destination and sell the same for the best price obtainable notwithstanding the delayed shipment and bad condition of the fruit on arrival, is correctly refused where the evidence is conflicting as to the breach of contract on the part of the shipper, who was the seller, to whose breach of contract is attributable the delay in the transportation of the fruit and its bad condition on arrival.
Charges given by the court will be considered in connection with the evidence and pleadings in the case and interpreted in reference thereto, in testing assignments of error based on the giving of such instructions.
Where assignments of error are based upon a portion of the court's instructions, the appellate court in considering the assignments will examine the entire charge for the correct interpretation of the portion objected to, and if in the light of the entire charge the portions objected to are not harmful or erroneous, the assignments will fail.
The evidence examined, and found sufficient to support the verdict.
COUNSEL Atkinson & Burdine and J. C. Gramling, all of Miami, for plaintiffs in error.
L. R. Railey, of Miami, for defendant in error.
J. G. Truitt brought suit against T. A. Winfield, J. Havenstreet, and H. H. Elliott as copartners doing business under the firm name of 'Winfield Packing Company.' The declaration contained two special counts and several common-law counts. The first count rests upon a cause arising ex delicto, and the second upon one arising ex contractu. The first count states an action upon the case for fraud, and the second for breach of contract. The first count alleges in substance that the defendants obtained from the plaintiff a large sum of money by falsely representing to the plaintiff that they had shipped to the plaintiff at Galveston, Tex., on the 21st day of December, 1912, several hundred crates of oranges from Miami, Fla., and, telegraphing that statement to the plaintiff at Galveston, made a draft on him through a bank at that place for the price of the oranges; that the plaintiff, relying on the representation made to him by the defendants as to the shipment, paid the draft; that the oranges were not shipped on the 21st day of December, but were not shipped until the 27th day of that month; that, instead of shipping the oranges on the 21st day of December, the defendants delivered the fruit to the Van Steamship Company and received a bill of lading therefor, with knowledge that it would not be shipped for several days, but would be stored in a fishhouse over the Miami river, which house was used by the Van Steamship Company for storing freight; that the fruit arrived in Galveston in bad shape and unmarketable on account of the storing in the warehouse and delay in shipment.
The second count set out a contract to the effect that the plaintiff bought from the defendants a quantity of oranges in December, 1912, with the understanding that the fruit would be shipped immediately and in good condition and marketable at the time of shipment; that the shipment was to have been made to the plaintiff at Galveston, Tex., immediately, and upon assurances of speedy transportation; that the defendants carried the fruit on the 21st day of December, 1912, to the Van Steamship Company and left it there for shipment, although they were advised and informed by the Van Steamship Company that the steamer on which the fruit should have been shipped had left port, and that it would be several days before another steamer would sail from Miami to Key West, at which point the fruit was to have been delivered to the Mallory Line for Galveston; that notwithstanding this information the defendants insisted on leaving the freight with the Van Steamship Company and demanded a bill of lading for same dated December 21, 1921; that on the same day the defendants wired the plaintiff and wrote him that the fruit had been shipped, and drew on the plaintiff through a bank at Galveston, Tex., for the price of the fruit, and the plaintiff paid the draft; that the goods arrived in Galveston in bad condition, owing to the fact that it had been stored in Miami for about a week prior to its shipment, and was in bad condition when it was delivered to the Van Steamship Company at Miami; that the defendants failed to comply with the terms of their contract with the plaintiff by 'shipping inferior fruit, and by shipping same at a time and in a manner that the defendants knew would cause delay and would likely impair the market value of said fruit.'
The third, fourth, fifth, and sixth counts of the declaration are common-law counts for momey had and received by the defendants for the use of the plaintiff; for work done and materials furnished by the plaintiff for the defendants at their request; for money lent by the plaintiff to the defendants; and for money paid by the plaintiff for the defendants at their request.
The defendants demurred to the declaration, which demurrer was overruled, and such ruling is assigned as the first error. The ruling of the court was correct, because the demurrer going to the declaration as a whole, and the common counts stating a cause of action, the demurrer should have been overruled. McDougald v. Bass, 53 Fla. 142, 43 So. 778; George v. Drawdy, 56 Fla. 303, 47 So. 939; Gulf Lumber Co. v. Walsh, 49 Fla. 175, 38 So. 831; La Floridienne, J. Buttgenbach & Co., Societe Anonyme v. Atlantic Coast Line R. Co., 63 Fla. 208, 58 So. 185.
The defendants filed the following pleas:
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