*1 n Light Error,
Delco Company, a Corporation, Plaintiff LeRoy v. Corporation, John Hutchinson Properties, in Error. Defendant A.
Division filed Opinion 4, March 17, 1930. April rehearing denied Petition for *2 Plaintiff Lewis, B. K. for D. Carmichael M. Error; in Error. Mitchell, Defendant &
Vocelle *3 Light Company, corporation, a J. The Delco Ellis, LeRoy replevin against John Hutch- brought an action of corporation, possession recover Properties, inson to twenty refrigerating producing ice machines called “Frigidaires” attachments. their Gallentine, partner-
The machines were sold Reed & LeRoy ship, Properties. The transaction Hutchinson agreement was evidenced a written called a conditional provided sales contract in which it was the title to property pass should until purchaser not to the agreed by ma- paid amount the purchaser to be for the fully paid chines should be in cash. possession right immediate to the ’s claim following proposi- upon rests “Frigidaires” Prop- LeRoy Hutchinson defendant, First, :
tions machines; that therе was pay for failed to had erties, $3,591.50 which price of purchase upon the due a balance had &Reed Gallentine pay; that refused the defendant Acceptance Cor- Motors General assigned the contract plain- assigned the contract in turn which poration, *4 tiff. that proposition upon the defense rested
The defendant’s in. them an agreed to' install machines the seller by operated and Beach owned building in Vero apartment by.the used machines could be so that the defendant the installation but that apartments, in the tenants inefficiently and negligently was so machines the seller escaped from them poisonous gases and that noxious done and caus- making them uninhabitable apartments into the to the tenants annoyance and inconvenience ing de- damage to the consequent injury and apartment and fendant. if effect that provisions contained to
The contract any payment defaulted in the machines purchaser the' provided for under the terms of thе contract the seller might possession take machines, including equip- accessories, ment and without demand. alleged declaration wrongfully- that the defendant
detained the machines and possession refused to surrender of them plaintiff. to the
There were pleas two plea to the declaration: one a guilty not and the other, what counsel for the plaintiff in error, plaintiff below, pleased call, is “plea to of counter- claim.” The second here set out full. It is as follows: purchased defendant plaintiff
“That this from the property paragraph described in 1 of the declara- paid plaintiff tion and that this defendant has purchase price $1,551.50; on the thereof sum plaintiff promised, agreed that the and install said frigidaires compressors and in an apartment building City Beach, Florida, of Yero oper- owned and apartment ated defendant an as house and the plaintiff agreed promised properly install said frigidaires compressors that the so same could be purpose supplying used for the refrigera- ice and apartments; tion for tenants in said the said plaintiff comply did not with agreement, its said the said properly did not install said frigidaires compressors, contrary but on the in- negligent stalled the in such same and careless man- ner that the same could not used for purposes be intended and caused poisonous gases noxious and escape in thereby the apartments, making the same grеat annoyance uninhabitable and caused and incon- *5 venience to the thereof, tenants all to the and' injury damage of this $10,000. defendant in the sum of And judgment against the therefore, claims defendant, this $10,000.” said amount of plaintiff plea upon second to the plaintiff demurred The facts no defense and that it constituted grounds- that There general issue. admissible under the averred were ground. plea upon the same strike the was a motion to motion denied. The and the The demurrer was оverruled promise install replied that it did not then plaintiff compressors Frigidaires and as averred. and the court held that case on for trial came assignment failed to show a valid plaintiff evidence Acceptance Cor- Motors of the contract from the General assignment was not in that the poration to the by-anyone, to exe- authorized to have been executed shown Acceptance Motors same on behalf of General cute the pur- appear that. the Corporation and that it did not prior to the institution ported assignment wks made assign- the court held that the appears case. It the General the seal of ment was shown to be under for the Bishop, a wilness Corporation. Mr. C. W. Motors corporation seal seen the plaintiff, testified that he had objection question Company. An Motors the General was the Defend- if he had the seal made inquiring seen objection interposed the Before the was ant’s counsel. Objection answered in the witness affirmative. was
question interposed was then and overuled. There question motion to strike- the answer. The no following corporate seal of propounded: “Is this the was then on Acceptance Corporation appearing Motors General paper).” The witness paper? (Indicating on this objection question is.” There was an answered: “It objection was raised objection was overruled. The and the motion there was no question was answered and after the *6 contract assignment When the of the strike the answer. in evi- Corporation was offered Motors the General the court objection was to its introduction and dence made objections following language: in “Sus- sustained the assign- objections that Mr. Vocelle made to the tain all the him ment, exception of asked about with the those he questions questions I ruled on before. All seal—the same questions Ex- sustained, except those two abоut the seal. ception noted for-Plaintiff.” attorney
Mr. defendant and asked no Vocelle was questions plaintiff about the seal. Mr. R. K. Lewis for the questions concerning the propounded the to the witness per- assignment execution of the written as well as those taining corporation’s exceptions seal. The bill of to the objections questions as to the execution of shows identity assignment but those as to the were sustained corporate seal of the were overruled. may gather
As as well one from the confusion of words appearing in exceptions connection, the bill of in this it seems that the court ruled that the evidence as to the identity corporation’s seal was admissible but plaintiff authority failed to show for the due execution corporation’s if name; instrument and that assignment the written was was valid it inadmissible be- appear it did cause not to have been executed before the begun. action was
There
anwas
instructed verdict for
the defendant
took a writ of error.
plea,
The second
when
considered
connection with the
subject matter and character of the
may not be
action,
properly
termed either a
or
off,
set
claim
counter
recoupment.
The rule under
may
which the
court
judicial
some cases and should in others take
notice of
things
matters
inapplicable.
is not
court should
*7
take
of
application
notice
natural
laws and their
use
and
industry,
art
generally
mаtters of
and science which are
recognized
known and
judicially
will be
noticed. As said
by
Supreme
States,
Court
the United
the natural
upon
operation
law
which the
and
ice
usefulness of an
depends
judicially
cream freezer
is
noticed. See Brown v.
Piper, 91 U.
37,
S.
Many knowledge facts may of current be and interest judicially noticed knowledge as matters of common al though logical possible. no classification of them is oneAt bicycles time the judicially common use wes noticed. Turnpike-Road See Rochester &c. Co. v. 41 Div. Joel, App. 43, Supp. 58 Y.N. 346. telephones ordinary
That have an become medium interchange and thought judicially communication is Printing noticed. See Globe v. 23 Stahl, App. Co. Mo. 451. telegraph nature of judicially
The line noticed. See Vicksburg, Youree v. & Co., 791, S. P. R. R. 110 La. So. So it follows that selfproducing the use of automatic or refrigeration ice machines for may and domestic use be noticed well as as the method they operated. which are ‘‘ ’’ type One such frigidairе. may machines is called It judicially be noticed it consists of an box ice like arrangement supplied machinery with driven some kind power, usually electricity, supplied and with a circulat- ing liquid upon vaporizing produces necessary which freezing temperature objects within box to secure the for which designed it is and It may sold. noticed be n they such machines placed must be assembled where are supplied by intended to be'used and suitable connec- tions power with the intended to be used secure the end for they which are sold. merely averred that when defendant second
purchased agreed the machines the seller to install them they supply- properly purpose could so be used for ing refrigeration ice apartments for tenants they paid placed; where were to be had that the defendant seller had not price but that part purchase compressors so that the machines properly installed allowing poisonous noxious and they throwing off and were annoyance of the apartments to the gases escape in the *8 uninhabitable, etc. occupants making apartments and agreed to plaintiff that' a denial that it plea The met compressors. the machines and install seller presented The of was that the effect the issue thus machines until assigns right recapture or its had no to delivery and the for them fulfilled it contract of was words, payments. In other its purchaser failed to meet had they complete was not until delivery of the machines pur- apartments in the properly installed were arise obligation pay to did not until the chaser’s machines by the seller. properly installed were knowl- will take In view the facts of which the Court ‘‘ ” which throws edge Frigidaire it follows that a machine gas rendering the house poisonous” off “noxious a apartment it is not placed in which is uninhabitable machinery of the complete piece installed properly not for contract and suitable in the character described it for which is sold. purpose general of the issue denies the It is true sought recaptured, be property to plaintiff’s title qualified sense, in a not in sense only is but it true merely try is one title as replevin action right possession. distinguished entirely statutory it in this is The action as exists State may though brought cases where the and even it be
419 original taking wrongful possession was it to recover lies of chattels that unlawfully damages are for detainеd and their detention. 267, Evans v. 72 73 Fla. So. Kloeppel, 180; R. Comp. Sec. Gen. Laws 1927. 5329, purpose
The possession the action is to recover of the damages chattels and plaintiff their detention and the right must possession show in himself. He must show that he was possession entitled to the property of the when action brought. was Younglove See v. 44 Knox, Fla. 743, 33 427; So. R. Richbourg v. Rose, 173, 53 Fla. 44 So. 69; Malsby R. v. 61 Fla. Gamble, 310, 54 R. So. gist of the action is not taking property rather wrongful
but detention of plaintiff’s it and the right to possеssion. immediate Ency. Stand. of Proc. 887, and authorities cited. the plea guilty give any
Under of not the defendant can special evidence matter which amounts defense plaintiff’s cause of action to show that the not the possession property replevined. entitled to See Holliday v. Fla. 153. McKinne,
In that case it' was held that evidence
prop-
of want of
erty
right
possession
was
In
admissible.
Gibson v.
Mozier,
his v. Rose, by pleas A denial of title legal is immaterial because the may title not be in who right one has to immediate pos- property replevined, although session a want of may right title be evidence of lack of pos- immediate meaning Such must' be the session. of the language in Gracy v. Air Seaboard Line Ry., 301, Fla. 68 So. R. agree and Mr. Justice Mr. Justice Buford Whitfield
with, point. the writer оn this Mr. Strum Justice Mr. Mr. Justice Justice Brown, court that the agree plea invalid, that the was Terrell was overruling a it the error erred in demurrer to but that plaintiff or offered either harmless as no evidence was ignored by parties it. was both defendant under It was agree All that if was it cause. error committed the only left decided is question harmless. the to be So excluding whether erred in the the court evidence assignment written Motors the contract General plaintiff. Company to the agree Mr. Justice Mr. Justice Buford Whitfield identity no error because the made
that the court no legally was established and author- seal not coporation’s signed cor- person who ity to exist was shown in the assignment to execute it poration’s name name. corporation’s Mr. Mr. Chief Justice
Mr. Justice Terrell, Strum, identity of agree and the writer Brown Justice sufficiently established and corporation’s seal was from the improperly therefore excluded document was evidence. judgment therefore,
It this case follows, hereby be reversed. should judgment in the reversal. All concur specially).—The up (Concurring facts set J. Brown, might appropriate second have been considered as plea recoupment. However, pleader fit plea for a saw allege that, end on facts pleaded, at the *10 injured damaged $10,000.00 had been and in the of he sum damages against plaintiff in claimed said amount and damages was double the amount of for detention which
421 allegеd by plaintiff. plea Thus in plea is form aof of setoff. I it, strictly
As speaking, plea understand a of setoff is a counter against demand which a holds a defendant arising plaintiff, a out of extrinsic plain- transaction of tiff’s of action, object cause is and of which to meet off-set in whole or in part plaintiff’s demand, or if amount of the setoff demand, judg- exceeds that obtain ment for the amount such of excess. It is in the nature of a cross action. object hand, plea other of recoupment
On the recoup part is or in whole or in the claim sued to rebate upon upon, right resulting must be based some and arising out of the same transaction which forms defendant right plaintiff’s suit. of a defend- basis of “It damages ant, action, plaintiff, the same to claim complied either because he has not with some obli- cross gation upon he-sues, of the contract which he or because duty imposed upon has violated some which the law him making performing or 34 623- сontract.” Cyc., 625. species
It has been said is a “counterclaim” recoupment setoff or introduced pro- codes of civil in several of a states, character, cedure broad liberal general recoupment and embraces as a rule both set- although off, comprehensive broader more than either. 629. no Cyc., providing We have statute for pleas of counterclaim law actions. The defendant use must plea recoupment, either the setoff, according which is appropriate to the pleaded. facts general appears rule to be that in an action -re- plevin, a plea setoff, in its sense, strict cannot be pleaded. Cyc., Pldg. Prae., & Cobbey 547. Re- on plevin, ed., 2nd *11 it Cobbey Replevin, is said:
In 794 of on Section ‘‘ in replevin in an action of is not allowable Set-off ordinary in in other it is allowable the sense which action, damages growing Out of the same forms bnt of reducing subject-matter may in be considered replevin damages in action. claimed or allowable give And action such flex- courts are inclined to ibility arising adjust equities as to all between parties replevin, in in such action. There is no set-off goods subject charge but if to a can be are it en- ^’’ way recoupment. forced plead replevin may in a defendant it that even But seems arising out against prove a claim and recoupment against the as an off-set transaction same property. damages for detention claim for plaintiff’s it is Cobbey Replevin, 795, Section said: In on may a counter- replevin plead “A in suit defendant a damages. and as an offset to claim as defense detention, defend- damages plaintiff claims Where arising out may plead prove ant a counter-claim damages. against such claim for same transaction replevin is the subject-matter litigation in property complaint, in and the mentioned defend- claim, ant cannot the release and return other and though present he personal property, distinct even him such a case as would have enabled to recover replevin by an independent action. In the seller goods, given payment therefor after notes overdue, mortgage thereon have become secured may payment damages part defendant show A warranty may of warranty. breach breach of original be used as cause for a counter- action, an *12 the defense, option as matter of at the of clаim, by way warrrantee. of When used as a defense it is recoupment; destroys is, it cuts back and the plaintiff’s right to (Evidently meaning, recover.” rights damages.) recover
In shape the in plea which the so-called of counter- subject claim drawn, case, was in I 'think it was this to the demurrer and overruling the court erred in de- the It murrer. is the defendant offered no un- evidence true, der this plea; necessary nor was it for him do as so, the court instructed a verdict the defendant at the of plaintiff’s clоse the in agree evidence chief. I Hence that this error turned out to be harmless trial on this of the case. agree
I portion with that the opinion of of Mr. Justice holding impression corporate of the seal Ellis of assignment the written under contract, which plaintiff right claimed possession its of sufficiently was established and that the court erred in excluding such assignment. written
Replevin a possessory is action. The prop- title erty detained not primarily involved. . hap- It often pеns that right possession of is in person one and the title another. But unless there has been some severance of right possession legal of title, the holder title right has the possession, general as the rule right possession is that goes with ownership. plain- The tiff right must of course show possession when suit was brought, and it sometimes becomes necessary plain- for a in replevin tiff to show title in order to right show his possession. Cyc. 34 1388, 1390, Cobbey on Replevin, 128, 130, Sections seq. et general issue, under our statute, denies plaintiff’s right as well as the possession, wrongful title of
taking case, I think in this or detention. it had the plaintiff as to whether was relevant the issue assignment right of hence exclusion of the possession; was the reversal harmful error. concur I, therefore, the case. J., J., C. Strum,
Terrell, concur. J. This isa suit replevin Buford, *13 against per- error the defendant error to recover certain property plaintiff sonal which the claimed title un- to the der the provisions of conditional sales contract.
It is purchased proр- contended that the defendant the erty from the & that the dealers, Gallentine, Reed dealers retained the property title to the under a written paid contract until the same That should be in full. & assigned Reed together Gallentine the contract with the property therein Acceptance described to General Motors Corporation General Motors Acceptance Corpor- ation assigned thereafter and property the contract to thе plaintiff. pur- plaintiff the in evidence what
On the trial offered assignment ported property from to be the of contract Acceptance Corporation assign- General Motors which purported by to be J. B. assistant Weldon, ment executed corporate the seal of the treasurer, corporation. under right the general possession issue denied of The of plaintiff and, proof burden the therefore, the of way right possession plaintiff. only was on to the prove right possession case prove the this was to the validity legality purported assignment and the the from the dealer Acceptance Corporation, to the General Motors assignment from Acceptance and the Motors General Cor- poration plaintiff. proof There was no offered assignment show to the General Accept- the Motors Corporation by anee was exeented an officer authorized to execute the same. рrove The evidence to introduced of corporation the seal was pur- insufficient to the establish ported corporation. seal of the seal as the as purported
The evidence to whether or the seal not corporation the seal the who was was witness was give qualified not shown to be to evidence as to the authen- ticity seal involved. This witness testified corporate he had Acceptance seen seal General Motors Corporation and that assignment the seal to attached involved was seal corporation. of that The witness did purport any not have knowledge to as or information assignment whether the seal on appearing had been adopted by proper procedure corporation as its corporate seal. Neither purport testify did he that the appearing generally seal on the assignment was seal used corporation in the transaction of its businеss. If seal purported assignment attached was the corporate corporation purporting seal of the to make assignment, easy it would have been an matter for the proven by taking to have this fact depositions of *14 persons testify position in in regard to that matter. Griffing In Fla. Bros. Co. v. 53 43 So. R. Winfield, 589, say: 687, this Court
‘‘ judicial Courts do not take notice of the seals of corporations, private nor do prove such seals them- selves, it shown but where is or admitted that in- the signed for the corporation by strument proper its presumption is duly officer the that was it executed, presumption which includes the authenticity of the seal used in execution.” its case, the however,
In instant the execution pur- the proven ported assignment was not to have been made on 426 duly by authorized corporation an office! the
behalf of pur- a corporate instrument, A thereunto. seal affixed must be shown corporation, the porting to be seal have- cоrporation, and it must adopted by the to have been the corporation. as the seal of been affixed may by corporation be seal the adoption Such proper cor accomplished by either a formal action porate authority corpora the minutes recorded by general particular tion or of a seal in the busi use corporation as ness said heretofore transactions where it is shown admitted that an instrument was by signed by corрoration proper its officer or its. duly duly presumption is that it was authorized agent, and this executed in the absence of evidence presumption, used, contrary, authenticity to the includes the seal Griffing its Bros. Winfield, supra, execution. Co. v. 337; C. J. Jackson v. 381. Pratt, Johns There was no error in action reversible court sustaining objection interposed to the introduction purported assignment the General Motors Ac- ceptance Corporation plaintiff. J., concurs.
Whitfield, Weaver-Loughridge a Corporation, Lumber Company,
Appellant, v. J. Appellees. ux., Ham Kirkland et
Division B. Decision filed 7, November *15 T. Hendry WilUam and H. D. Wentworth, Appel- ; lant