Bishop v. Taylor
41 Fla. 77
Fla.
1899
Check Treatment
Carter, J.:

The writ of error is from an order granting a new trial and is authorized by section 1267, Revised Statutes, which reads as follows: “Upon the entry of an order granting a new trial at law, the party aggrieved by such order may, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, which shall review the said order, and if the cause be reversed, shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment or for judgment non obstante vere*90dicto shall be made and prevail.” In passing upon the propriety of this order under the first assignment of error we shall consider each ground of the motion for the new trial in the order stated in such motion.

I. There is nothing in the evidence tending to prove a cause of action under the counts for money lent, and account stated. Nor do we see anything in the evidence which could have justified a verdict for plaintiff upon the count for money received. The defendant pleaded the general issue which placed the burden of proof upon the plaintiff, and in the absence of evidence which if true would have sustained a verdict for plaintiff, the jury were not only authorized, but imperatively required by law, to find for the defendant. It is true that motions for new trials are addressed to the sound judicial discretion of trial courts, and that where such courts grant motions of this character, their decisions are presumed to be in accordance with the justice and merits of the case, unless the contrary appears by the record, and that an order of the trial court granting a new trial should not be disturbed by an appellate court, unless it appears affirmatively from the record that there has been an abuse of a sound judicial discretion, or that some settled principle of law has been violated. Reddick v. Joseph, 35 Fla. 65, 16 South. Rep. 781. But where the burden of proof is *upon a plaintiff, and the evidence before the jury is legally insufficient to support a verdict in his favor, and the jury find a verdict for the refendant, the trial court is not justified in setting aside the verdict upon the ground that it is contrary to the evidence and the weight of evidence. Such a ruling not only shows a clear abuse of discretion, but violates settled principles of law.

There are some expressions in the testimony of John *91A. Bishop which would seem to indicate that Taylor had testified to some agreement between them not shown by the report of Taylor’s testimony, but the bill of exceptions purports to give in full the direct and cross-examination of the witnesses, the evidence which the plaintiff and defendant introduced to maintain the issues on their respective parts; it states that plaintiff “rested his case” at the conclusion of the testimony of L. M. Thayer, and purports to give the testimony of plaintiff in rebuttal. In addition to these facts it appears from a statement of the judge, endorsed on the bill of exceptions, that it was presented to him for settlement on January x, 1894, and was objected to by plaintiff as inaccurate and incomplete, and “as there are some inaccuracies, the same is not settled today.” On the following day'the judge signed it, and it does not purport to be partial or incomplete. With these facts before us we must assume that the bill contains the whole evidence adduced at the trial. Robinson v. Hartridge, 13 Fla. 501.

In Gordon v. Camp, 2 Fla. 422, it is said that a count for money had and received may be proved by any legal evidence showing that the defendant has possession of the money of the plaintiff, which in equity and good conscience he ought to pay over. It was therefore necessary that plaintiff should in this case prove title to the fund sought to be recovered, and that in equity and good conscience defendant ought to pay same over to him. 2 Chitty on Contracts, pp. 898-908. The evidence did show that Thayer promised plaintiff $5,000 commission on the sale made to Bishop, and that he and plaintiff were to divide this commission between them. It also showed that Bishop received from Thayer’s company a commission of $5,000, although by the original agree*92ment he was to- receive none; and that he paid Thayer and plaintiff $1,000 each of the sum received by him as such commission; but there is no- evidence that the commission actually paid to Bishop was the identical commission that plaintiff had been promised' by Thayer. There is no evidence that Bishop ever knew that Thayer had promised plaintiff a commission, or that he had ever agreed to collect a commission for plaintiff, or that the $5,000 was paid to him for plaintiff, or that when he received it he knew or supposed that it belonged to plaintiff. It is true that Thayer testified that Taylor told him he had arranged with Bishop to collect his commission, but that was mere hearsay; and although Taylor was himself a witness he testified to- no such arrangement. He says in a general way “the defendant is indebted to me in the sum of $2,000 and interest, for an agreement between us,” but the nature of that agreement is not stated and we can not know that the supposed agreement would sustain a common count for money received, or that it related to the $5,000 commission. He also says that a few days after his introduction of Bishop to Thayer “I met Mr. Bishop and I said to him/you are a good friend of mine. I will be busy and not have time; run this through for me and I will give you $500;’ ” but it nowhere appears what was meant by “run this through for me,” or that it had the slightest reference to- the commission transaction, or that Bishop then knew that plaintiff was to get a commission, or that he assented to plaintiff’s request to “run this through.” He also says he afterwards made up his mind to give $1,000 instead of $500, but this mental state does not appear to have ever been known to Bishop. The Peninsular Company never knew that Taylor was to get a commission, and they paid the commission to Bishop, not for Taylor, but for *93himself upon Thayer’s statement that he had promised it to him and that it made no difference who got it. Thayer, it is true, denies Bishop’s statement as to the understanding between them that the $5,000 was to be paid Bishop as a commission and he was to give Thayer $2,000 of it. If this testimony of Bishop’s be entirely eliminated, it will still appear that though Bishop originally was to receive no commission, yet that subsequently the Peninsular Company did pay him $5,000 as a commission to himself upon Thayer’s statement that he was entitled to it, and that Bishop thereupon at Thayer’s request paid him $1,000 and plaintiff $1,000 of the amount, and there will still be no testimony to show that the commission received by Bishop was the commission promised by Thayer to plaintiff. Without stopping to point out other deficiencies in the evidence, we think that upon no view of it could a verdict have been properly found for plaintiff, and that therefore the new trial could not legally have been granted upon the first ground of the motion.

II. The evidence complained of by the second ground of the motion for a new trial was evidently the testimony of Bishop to which an objection was interposed and overruled, as will be seen by reference to the statement of facts. This testimony was properly admitted, as bearing upon the material question as to whether defendant received the $5,000 commissions as money due to himself, or for the use of the plaintiff. Although by the original agreement for the purchase of the Peninsular Phosphate Company property Bishop was not entitled to a commission, yet if the company afterwards allowed and paid him one, he had a perfect right to receive it. There was nothing in the evidence showing any relation between'him and plaintiff or Thayer which *94debarred him from'accepting a commission if Thayer or the company was willing to pay it. And if he received the commission for himself and Thayer under an agreement with Thayer, having no knowledge that plaintiff was entitled to it, he can not be said to have received it for the use of plaintiff. There was, therefore, nothing in the second ground of the motion to authorize a new trial.

III. The evidence referred to- in the third ground of the motion was all received without objection, and its admission under those circumstances constitutes no ground for a new trial.

The order granting the trial is reversed, with directions to the Circuit Couit to enter final judgment for defendant upon the verdict, unless a motion in arrest of judgment, or for judgment non obstante veredicto shall be made and prevail.