30 Fla. 419 | Fla. | 1892
The appeal in this case is from a judgment at law for three hundred and thirty-two dollars and eighty cents, with interest from the 14th day of May, 1887, to the 25th day of April, 1889, rendered in the Circuit Court for Leon county, against the appellant as executor of the last will and testament of James D. Westcott, deceased, as defendant, and in favor of the appellee as plaintiff.
The bill of particulars filed with the declaration is a statement of cash received for J. D. Westcott, for rent of houses, and from other sources, commencing December 20th, 1884, and ending May 14th, 1887. The plea ivas the general issue.
Tlie nature of the action, as disclosed by the testimony, is for services, or commissions, in collecting moneys for rents and from other sources for said deceased in his lifetime. It is clearly shown by the evidence that in August, 18S4, said plaintiff was constituted agent for said decedent to collect rents for him then due, or to become due, from his Branchville property, being houses located east of the city of Tallahassee. The authority to act as such agent in collecting said rents in writing, and its execution by the deceased is duly proved by the subscribing witness, J. A. Ball, ivlio also testified that plaintiff acted under said authority, and collected the rents up to the time of the testator’s death. This witness does not state -wliat sums for rent ivere collected by the plaintiff under said authority. The aggregate amount of the sums of money received for the deceased, as contained in the statement filed as a bill of particulars with the
J. R. Crump testified for the plaintiff on the trial of this case, that upon an occasion he wished to pay said deceased a sum of money, and visited his room for that purpose, but was refused admittance; that some one told him to pay the money to plaintiff for the deceased, and he did so, taking a receipt for the money. On another occasion witness paid a similar sum to plaintiff for the deceased for the same reason. Two receipts were offered in evidence, one signed by I). B. Meginniss, Jr., per B., and acknowledged the receipt of 8127.30, subject, to order of J. D. Westcott, and the other signed by I). B. Meginniss, Jr., and acknowledged the receipt of $127.40, for interest due on note of J. I). Westcott, to January 1st, 1887. Witness also stated that subsequently the deceased said it was all right as to one of the receipts, but he did not remember as to the other.
J. I). Perkins testified for plaintiff, that said deceased held a mortgage on certain property of J. O. Kemper, who had borrowed a larger sum of money from a third party, and that the money was in the office of witness to pay to Kemper and take up the mortgage held by the deceased; that said deceased was confined to his room, and witness could not see him; but being told by some one that plaintiff could see him, he (witness) went, or sent, across the street to the store of plaintiff, and asked him to get the mortgage; that plaintiff rvent up to the room of the cle
The plaintiff testified that he heard the testimony of J. IX Perkins as to the money paid to witness, and it was correct. The amount paid was §1,550, which he deposited in bank to the credit of the deceased. He also testified that “ the account filed is correct. The items of the account on file are taken from my book of original entry, in which I charged myself with the rents received from the tenants; the book I now hold in my hand is my book of original entry, and the items correspond.” The bill of exceptions recites that ‘ ‘ the book spoken of by the witness was handed by attorney for plaintiff to the judge, and the judge handed it back to said attorney, and said attorney handed it to witness who testified as above stated.”
Exception was taken by the defendant to an adverse ruling admitting the testimony of the plaintiff, a motion for a new trial, embodying, among other grounds, one that the verdict was contrary to the evidence, was overruled, and these rulings -are assigned as error here.
It is contended that the testimony of the plaintiff should have been excluded on the ground that it related to a “transaction or communication” had with the deceased, and was inadmissible under the statute.
The authority of the plaintiff to collect rents for the deceased from his Brancliville property was clearly shown, and after the establishment of this authority, it was competent for the plaintiff to testify as to the amount of rents collected under it, and no valid objection could be made to his testifying as to what was a reasonable compensation for such services, in the absence of an express agreement fixing the amount of his compensation. This would not be testifying to any transad ion or communication with the deceased. Belote vs. O’Brian’s Administrator, 20 Pla. 126 ; Deans vs. King’s Executrix, Ibid, 533. lie would not be permitted, of course, to testify as to any promise
It does not follow from what has just been said, that plaintiff was entitled to recover ten per cent-, commission on the entire amount of the account filed with the declaration. As to the sum paid to the plaintiff by J. R. Crump, and the sum of $1,550, received from J. D. Perkins on the Kemper mortgage, we think the result is entirely different. The testimony is entirely clear that these sums were not for rents, and there is nothing to show that ten per cent, was a reasonable compensation for what the plaintiff did, as shown by evidence, in connection with them. It can not justly be inferred that the circumstances attending the reception of these sums by the plaintiff, were the same as those connected with the collection of rents from the tenants of said estate, and the only evidence that had any bearing on what was a proper compensation, related to the collection of said rents. But independent of this deficiency the plaintiff was not entitled to recover, on the testimony before us, any commissions on the amounts now under consideration. There is nothing to show that plaintiff was the agent of the deceased to collect these amounts, or that the deceased
The view advanced, that plaintiff was entitled to recover, the amount of his account sued for, on the showing of his book account of original entry, claimed to have been introduced in evidence, can not be sustained. Originally book accounts were not admissible in evidence in this State. Higgs vs. Shehee, 4 Fla. 382. Subsequently to this decision the Legislature passed an act that shop books of account of either party, in which charges and entries shall have been originally made shall be admissible in evidence in favor of such party, and the credibility of such evidence shall be judged of by the jury in cases at law, and by the court in cases of equity. Chapter 662, acts of 1854, Revised Statutes, sec. 1120. Under this statute, as construed by our decisions, before the books can be admitted in evidence they must be submitted to the inspection of the judge, accompanied with proof that the entries therein were originally made, that is, made by the party contemporaneous with the
The order of the court is, that the judgment of the Circuit Court be reversed and a new trial granted, unless the appellee, or his attorney, within thirty days after the filing of the mandate of this court in the office of the Clerk of the Circuit Court, shall file with the clerk of said court a remittitur, as of the date of said judgment, for the amount of commissions at ten per cent, on the amounts paid to appellee by J. R. Crump and J. D. Perkins, and interest thereon; and upon the filing of said remittitur the judgment shall stand for the balance of said recovery as the judgment of the Circuit Court, to be enforced according to law. If said remittitur shall not be entered as aforesaid the judgment will, upon the expiration of said thirty days be held to be vacated and a new trial awarded. The costs of this appeal will be taxed against the appellee.