Parsons v. Federal Realty Corp.

ing custody minors, a matter in chancellor supersedeas has wide but not discretion, unlimited a order granted will not appellate be appears unless it court by the custody adjudged ap- record that the in the decree pealed clearly from is for not interests of the best minor or custody special that for reasons the awarded should not pending appeal. be made effective There may other guide cases considerations judicial the exercise of applications super- discretion in appropriate sedeas orders. An consideration the record ease, application this supersedeas order, for a clearly does not appealed indicate that the decree from is no't for the special best interests the minor no and appear reasons suspending operation of the decree pending appeal. grant supersedeas a denial necessarily order does not indicate what decision appellate adversary argu- will court the merits after ment and mature consideration. pointed

For out, application appel- reasons supersedeas properly denied, lant for had been application rehearing for a should likewise be denied.

Rehearing denied. O.J. Whitfield, Davis,

Buford, Ellis, Brown and J.J., concur. J.,

Terrell, participating. husband, J. F. her Parsons, Lucille Lester Parsons Realty Corporation, Error, vs. Federal Plaintiffs Surety Company, corporation, Florida National corporation New York business in the to do authorized Florida, State of Error. Defendants 143 So. 912.

En Banc. 1931. Opinion filed December rehearing February 2, granted Petition for September 29, filed Opinion Reh.eari.ng Badger Loftin, William Kurtz & Otis Reed (N.Y.) Calkins, Stokes <& in Plaintiffs Error. Cooper

Knight, Adair, Mershon, <& <& Osborne and Evans in Defendants Error. Upon trial of action at law before an Davis, J. having jury Judge jury, a sitting without trial Circuit defendant, g’eneral waived, favor of the been verdict in Surety in an action Company, National was found by alleged on a to have been executed bond by payment $100,000.00 it to the Federal secure Realty Corporation plaintiffs erro'r, were the who obligees named the bond. by sued on recites that it is made the Federal bond

Realty by Corporation, principal, and the National Surety surety. regular Company, It one was not Surety Company printed prepared form bonds agents behalf, its turned for execution its but over special appears character to be bond of unusual and prepared by attorney obligees which to be for the Surety Company requirements to meet the executed which the was to be transaction Surety Company signed, given. it is “National For Surety Attorney Company, by Raie, D. W. in Fact.” The Surety CoUipany’s appears to be attached. National seal upon pleadings, The issue which was raised entered verdict for defendants was the Circuit trial, Judge whether or not bond sued at the plaintiffs is bond Na- the such a as made the defendant Surety Company a liable thereon as under tional of this case as dis- the facts and circumstances pleadings the the and evidence. closed special point findings On were the this there Circuit general special Judge verdict. These in addition to the only pertinent to as findings, while considered indicat be reasoning Judge ing of followed the Circuit pro'cess the general verdict, reaching are to the effect that it had agent, from that appear to the evidence made been authority execute and deliver the bond in Raie, to had notwithstanding fact, if, this question; further, that ought upheld he be should contended that the to be apparent agent, Raie, cause the to had execute thereby on, Surety Company bond sued and to bind the party, the interest of an innocent neverthe third that less the point court had found that that the circum negotiations stances shown have surrounded the for bond, put delivery, as its execution and were well plaintiffs, acting plaintiffs, upon and those for in quiry agent’s as to and nature extent of the actual undertaking which did not authorize such signed by him.*

After rendered, plaintiffs the verdict was a for moved new trial. Such for motion a trial as it containing, new does, appropriate grounds purpose, brings up fdr sufficiency review findings of the evidence to sustain the judge. action, Such is the case in a common law jury when a Alley Ball, has been waived. v. Fla. Rep. Sou. appears

It from the evidence that a real estate boom syndicate composed of M. R. Gano, o'f Philadelphia, and others, August, through agreed agent, sales purchase winter home Mr. Mrs. J. Lester Par- sons, plaintiffs who were the below; the Court agreed purchase price $250,000.00,—$7,500.00 cash paid being down, $67,500.00 paid closing the trade and $175,000.00 represented by balance of purchase money mortgage; completed before sale was Gano (following associates boom custom of transactions character) property Realty resold the to' Federal Corporation $307,000.00, of which out transaction Gano, associates, expected profit $45,- amake 000.00. guaranty given in effect *The bond was contract to secure aggregating payment notes, two $100,000.00, executed Corporation Realty Federal Parsons, to Lucille F. Parsons Lester J. mortgage. husband, her both of which were secured

In carrying latter Gano out the transaction wished Bealty deed from the Parsons to be made direct to Federal Corporation. do, stating This Mrs. Parsons refused to property convey it was her that she it to and would Bealty Corporation obtaining Federal without bond, mortgage proposed in addition which was to to' the premises pur- to secure made the balance .of price. property chase The title to the was in Mrs. Parsons’ and she firm in name remained her determination not convey upon property except the conditions which she had elected exact.

Mrs. Parsons come to' Florida in with had connection Monday September. the sale about the and arrived last husband, Her J. man Parsons, Lester was a ex- wide perience, had in the who been fire insurance for business twenty-five years, over and was then the President two companies. fire Mr. insurance Parsons did not come closing Mrs. sale, at the time of o'f but Florida .the at that and one Parsons had services advice time Wyatt, attorney Henry City, J. York associated New companies, with who undertook the Parsons insurance represent Mr. Mrs. Parsons connection with and Wyatt finally the individual who' closed deal. Mr. was de- Mr. and Mrs. Parsons after entire transaction York. of Mrs. for New parture Parsons Wyatt, Gano, Parsons, Mr. Mr. appears It that Mrs. & Beed, which law firm Kurtz Beed, of the law a Mr. at Miami, met Mrs. Parsons represented Mr. firm arrange & Beed to discuss of Kurtz the office delivery meet- Such of deeds. sale closing shortly Parsons’ after Mrs. held have been ing to' appears various conversations conference Miami. At this arrival in obtaining of bond character reference were with had pay- to secure the Parsons, Mrs. insisted Realty of Corporation ment first two notes of Federal mortgage. appears to'

It have been from the understood start that a bond kind Mrs. Parsons wanted was unusual ordinary agent character and that no of a was authorized write a bond. This indicated testimony Vanderpool, appears of a man named who represented companies have two or three and who' stated that he did want to to write the be- undertake bond customary it not a cause was was out regular course.

This Raie, led to a general solicitation one Donald W. Surety o'f the National Company, to undertake the procuring task of such bond to be executed that com- pany. Raie, appears, Lauderdale, lived at Fort was general agent, authorized to act as a but with limited au- thority, Surety for Company the National Palm Dade, appears Beach and Counties. Broward Raie to have also powers attorney held certain to' execute for instruments Surety Company, appointment National an as well as agency agreement under an which contained powers, rather which did broad but not authorize him to $50,000.00 bonds of execute kind excess of without referring them the home office o'f the specific authorization. appears spoken It that when first to with reference to executing kind wanted, of bond Mrs. Parsons that Raie present then stated to those he have did not securing to execute such bond without the written con- Surety Company, sent the National and that it would necessary application signed, an also to have as well as indemnity agreement from individuals who desired papers all of bond, to have the so that these could be sent Surety Company home National to the office in New approval. papers accordingly pre- These York were pared appear New York Raie. been sent to 5, 1925, Monday, But October Raie called and signed immedi- told that it was essential that the bond be go through. At ately, that otherwise the sale would not company ap- expecting this was a wire from the time Raie proving given had directions that if the transaction and Miami. such a wire was should be sent to him in received it realizing only finally No such that wire arrived the and writing by chance of the rescission the bond would be lost departure of the Mrs. for trade and the Parsons New appears executing York, to chance of Raie have taken the Surety Com- principal, behalf National the bond on requested pany, knowing the he obtained that had not authority believing application do, but the and so that papers previously in, for would it, other which he had sent approved and course the due thereby been done. all that had validate ex- Surety Company approve, and

But the did pressed approve circum- unwillingness to' under its liquid full stances, agent could secure unless the local disapproval was communicated the collateral. This 1925, which was after the bond had October about authority already and delivered to executed without been obligee on 5th. October Surety the National Subsequent this, appears it that prompt steps to ad- in New Yo'rk took officers Company’s been bond had and her husband Mrs. Parsons vise Raie, their local at without executed they all would resist efforts Lauderdale, Port found, Judge upon Circuit any liability it. The enforce Surety National Com- properly so, that think we liability plaintiffs notified promptly denied pany months more although was some two effect, to that higher actually executed bond was after Surety Company took this action. National of the officers delay satisfactorily accounted reason this finding defendant National the court that Surety Company not informed of actual execu- delivery tion bond than two months until more expired upon receipt promptly had of that and that it acted information. proper

In disposing we first consider the case shall relating placed upon construction to statutes our surety companies’ agents be- State.. We this do cause, if plaintiffs re- contentions of error with gard to correct, of this are then the construction statute liability Surety Company the statute itself fixes actually signed the fact that the truth and de- agent, livered its do or whether with so to not. (Section 6307 effect on to this relied statute S.), R. G. reads as follows: 4345 L.,

C. G. represent so “AGENTS.—Every person shall far who any other State as any surety company in established suretyship, or applications for to or transmit receive delivery application founded to for bonds receive procure State, otherwise to from or forwarded this company upon suretyship to be such effected upon State, persons corporations in this or of or bonds State, corporations in this or persons given -to bonds Company. agent for said acting as be deemed shall 5).” 1885, of Sec. (Chapter Acts considered, or con been never before has statute Such relating statute similar Florida court, but a strued, this Stats. companies (Section Gen. insurance agent of to 1920) 1927, 4256 R. G. S. has L. 6207 C. G. 1906, now United States and Supreme Court of the before been Co. v. in Mutual Life Ins. Court construed Sup. 1202, 36 Ct. 613, 60 L. Ed. 241 S. Hilton-Green, U. recently agents was also insurance statute Rep. 676. The Appeals for the 5th Court of the Circuit considered Circuit Pacific Barton, Mutual Life Ins. of Cal. Co. v. (2nd) Fed. In both mentioned, cases last the Court said that relating agents Florida insurance statute com- panies, Section supra, 6207 C. G. L. undertakes designate .agents persons certain inwho for act fact scope such companies particular, fix does not some company their per- as between the and third sons, certainly special does not raise lim- agents, with authority, general agents ited possessing into unlimited power company. to bind the insurance plaintiffs

But contention is, in error here surety company agents (Section under the statute L.) surety C. company general G. when creates applications and authorizes him to receive or transmit delivery suretyship, grounded or to' receive for bonds applications from this State, pro- forwarded or otherwise suretyship cure company upon be effected bonds of persons corporations or State, that such responsible is to’ anything be deemed agent may actually executing suretyship, do contract conventionally whether not, authorized thereunto regardless agent’s authority, limitations on the notwithstanding agency notice of which, limitations on the may under the case, circumstances of a be-im- puted particular party dealing agent. with an express

Or, plaintiffs way, to it another in error contend by alone, that force and of effect the statute is a there presumption agent of law that the within terms coming the statute, authority things actually of the do had to the he do, presumption being in law, did fact that this of and one legal of is, of reason effect the statute under which agent acted, was authorized to act and an irrebuttable presumption, rebutting which neither of admits the fact

115 authority to be authorized agency, nor the extent of agent. exercised Florida comparison

But from a is obvious companies (Section relating agents to statute 6307, S.) 4345 similar Florida L., C. G. R. G. with the (Section companies relating agents of statute to insurance S.) 6207, R. have a 6222, L., C. G. 4256 G. that both a purpose view, similar in and should therefore receive legal meaning similar their true construction when necessary judicial in a effect is to course of be decided liability com proceeding involving claim of a pany undertakings company alleged with regard to of the through statutory in this to been into state entered Surety Company, 124 agent. See Lumber Co. vs. National Iowa, 599, N. W. 550. agents companies relating

Our to insurance statute in applied Court Fire was construed and this American Mfg. 130, 74 Fla. King vs. Lumber Co. Co. Insurance 168, holding approved case Rep. and the that was Sou. 250 U. S. Supreme Court of the United States in Sup. In Rep. 63 L. Ct. case this Ed. procured held tire insurance was Court that where property in Florida a broker who was resident of this state, broker, who for the com that the acted insurance subject obtaining insured, pany in or information to policy premium and collected there who delivered the was, for, Florida statute above re under terms purposes, all to, deemed, intents ferred representative such insurance regardless premises. state, of conventional case did not hold that the effect But the decision was to confer on the statute unlimited Florida proprio vigore so as ex bind insurer agent’s facts as actual au- inquiry forbid into the upon theory thority proper cases, proper the statute, validity construction of the of the upheld by Supreme act was Court of the United States company a claim the insurance that it was 1 of violative of Section the Fourteenth Amendment to the Constitution, Federal because it created an irrebuttable presumption which depriving had effect of of its property process without due of law. relating agents

The statute to the of companies, as well as relating agents the statute of insurance appear companies, does to declare an presump- irrebuttable law, presumption tion of but such a as to the fact status agency only, part person on the of the who acts under statutory particulars. It does not undertake to' con- clusively fix scope agents extent company as between persons. appears and third This to be Supreme the view of the Court of the United States expressed in case, regard the Hilton-Green supra, with agents, to insurance that conclusion we are inclined by placing to concur the same construction on oUr statute controlling surety company agency. having

But statutes object this character for their regulation suretyship business of insurance and through agents hire when transacted licensed companies soliciting State act for business for them, of imputing liability do have the effect to the com- pany by agents apparent bonds having executed author- ity to them, they execute and deliver even if are not con- ventionally or in fact authorized to execute such bonds as they in fact apparent authority. execute under such just o'f to,

Under statute kind referred the status agency statutory being particulars irrebuttable when the of agency present, apparent authority equal are to real agent’s when the limitations known, are not made liability undertakings apparent authority executed under his

117 them, depend upon circum execute facts and will the Ins. particular stances of the case. Pacific Mutual Life Cir.) ; 5th Barton, (2nd) (C. Co. of v. 50 C. A. Cal. 362 Fed. Champenois Co., & v. 153 121 719, Blank Donald Miss. Rep. South. 485. a applied

And where has been a state license surety naming particular person agent, its company, a as applica agency with no restrictions the stated the attorney authority tion, power restricting agent of a the dealing agent the is ineffectual one with without Office, knowledge of Ins. notice or restrictions. Sun the Mitchell, Rep. v. 186 Ala. etc. Sou. bonds, undertakings with blank and

Persons intrusted surety surety company, having access the seals a company’s negotiate authorized to seal and official undertakings it, accept reject bonds write properly risks, thereto, etc., held to be attach are seals general issue agents of the execute Realty Co. v. Corp., its behalf. Corklite Rell bonds on 1, 162 N. E. 565. (Court Appeals) N. Y. prin of his agent sign an authorized to the name

And may effectually affixing cipal simply him to the bind if his principal, it were the name of instrument being act, form of execution personal particular principal, and name of the material when done the instrument. having in fact execute tíne Indemnity Josephine Independence v. Pass and Co. Grants Bank, (2nd) C. A. Circuit. 29 Fed. C. 9th body that, Accordingly has been held where surety authorized forth that therein bond sets State, signa- and the surety company doing business surety company’s author- that of ture to such bond is surety bonds Timing to execute agent ized signed signature as bond class, although general agent signing that the not indicate does surety signing init instance as company, appears and when such bond to have been de- livered company, the bond whether it was not, so will delivered estopped denying agent’s authority from deliver the signature' bond, ob that the thereto is not such as to bind the company, provides every where State statute person surety represent any company who shall far so as to applications receive or transmit or suretyship, for. other- procure by wise to suretyship company, to be effected etc., agent company. shall Champenois an deemed & Co., Blank v. 1212 719, Rep. 153 Miss. Donald Sou 485. ap

Likewise authorized to solicit and receive plications insurance, countersign for and to and issue policies regarded him purpose, intrusted to for is quoad general hoc as company, and while powers limited, could be and such limitations would be binding as between the himself, and as to persons all having thereof, notice his authority, as to third persons notice, knowledge put without of facts to them upon inquiry notice, which would lead to is to be determ usually ined business nature done agent, primia is requirements. co-extensive with its facie Office, etc., Mitchell, Sun Ins. v. 420, 186 65 Ala. Sou. Rep. 143. tendency regard of Florida decisions has been to they companies, ordinary insofar transact their as becoming

business of under sureties hire the laws of as state, in a to being like situation insurance com- panies, being governed principles legal as the same in so far the conduct of their affairs is on. carried in Surety Company

Thus it was National vs. held Will iams, Rep. 212, 74 Fla. Sou. Receiver, that an by surety company indemnity bond, a in the executed course suretyship hire, in its business of was effect a con- o'f ordinary governing contracts tract which the rules applied, should in that ease that appearing insurance it given indemnify question bank the bond had been Many through duty. losses its cashier breach opinion support view, authorities were cited in like the bond that case was construed manner although construed, appeared as an insurance contract that the instrument was denominated sued on parties it, all the in the executed form of regarded by parties bond was all the contract suretyship and on in was sued as such. the declaration Other regarded authorities in the proposition light. 30; same Spencer Suretyship, See Ander sec. son Surety Co., vs. National Rep. St. 196 Penna.

The oft stated maxim that favored law” “sureties are suretyship for hire. the business of application has no E. 246. Rose, Ill. 51 N. People ex rel. vs. Kasson why suggested as to reasoning has been No sound surety companies suretyship carried business of as regarded by the should be regulation, under state analogous business conducted Courts as to the insurance circumstances, companies under similar insurance impelled that our statute we are therefore to the conclusion surety defining who companies, and relating agents to companies, such agents be shall be deemed held to upon put has that been construction the same receive should supra. 4256 R. G. S. L., 6207 C. G. Section under 6307 opinion section therefore We are every who shall so far S., person 4345, R. G. L. C. G. as to or company in state receive any surety this represent suretyship, to receive for de- or applications transmit application forwarded from livery founded bonds suretyship to effected procure to' state, or otherwise corporation persons bonds upon company such be an to and held state, be deemed must in this 120

such law, as a matter and that such status will not be to assert that the heard of agency any falling do'es not exist in case within the purview of statute. opinion public

But arewe further of the that while the right rely upon statutory agent’s apparent have a to authority, arising agency from the fact itself im puted him statute, do act in the course of agency usually which he undertakes do of character performed through persons dealing agents, and with statutory agent inquire bound are not to his special powers to act in a transaction wherein he company, undertakes to act for the unless circum put upon inquiry stances are such as to them as to agent’s power limitation on special in the act in stance, nevertheless, cw*e when circumstances suf suggest inquiry ficient to such an ato limitation on the agent’s authority, limitation, if exists, notice of such imputed party will and the held bound the actual might facts given he discovered had he heed to the put upon inquiry. him circumstances which American King Mfg. & Ins. Co. vs. Lmbr. 74 130, Fire Co. Fla. 77 Rep. ; Sou. U. 168, 2, 250 S. 63 L. Ed. 810 Mutual Life Ins. Hilton-Green, 113, Co. 202 31, vs. 211 241 Fed. Fed. U. S. 1202; L. 613, 60 Ed. Pac. Mutual Ins. Life Co. of Calif. Barton, vs. (2nd) (C. 50 A. Circuit); Fed. 5th C. Southern States Fire Vann, Ins. Co. vs. 69 Fla. 68 Sou. Rep. 1189; 647 L. R. A. 1916B Holmes, Ins. Co. Aetna vs. Rep. Fla. Sou.

In the case Court, Judge now before the the Circuit found from the evidence the agent of the National authority Surety Company no had to execute and deliver nothing bond sued on. There is in the record which reaching shows that in the Court erred this conclusion. signed penal bond that was for sum of

121 $100,000.00 special peculiar of a form framed and was attorney obligees, for the and not agent. agency agreement or nor its Neither the powers attorney had, gave the two him which Raie power obligation to incur an kind in this of this or amount, so part actual to bind the authority Surety Company wholly lacking, National was properly Court so held. apparent authority authority

But equal is real in cases authority this kind agent’s when limitatiohs are (Pac. unknown Baryon, supra) Mutual Life Ins. Co. vs. argued by and so it is plaintiffs counsel for in error that admittedly since Raie did, to, authorized solicit the writing Surety Company of bonds for National Broward, Palm Counties, ap Beach and Dade received plications bonds, premiums,' bonds, fob collected wrote bonds, and delivered the statutes of State of Florida impose Surety responsibility on the Company National in the reasonably by Raie on behalf its all the done acts express no business, though he had prosecution even of its question. Cork authority particular bond write the (Ct. Realty Corporation, 249 Y.N. Co. Inc. Rell lite vs. al., vs. 565, Champenois et Donald Appeals) 1, 162 N. E. etc., Office, vs. 485, supra; Sun Ins. Rep. Co. Sou. Farmers Rep. Supra; vs. Herman Mitchell, 65 Sou. Zell 828; Ins. 44 W. Am. Fire 75 Wis. N. Mut. Ins. Co. 130, supra. But as we King, Fla. Co. vs. etc. Co. agency kind out, of this pointed constructive

heretofore brought being circumstances subject defeated agent, dealing party with such an attention agent had no upon inquiry put him sufficient being applied for. the kind of bond to write apparent had Raie Whether not the general of his question reason to execute the surrounding manner agency, the circumstances 122 representing the he carried on business so of an

company, as to in the bind interest presents party, question innocent of law and third mixed Rep. 88 Sims, 730, fact. Watkins 81 Fla. vs. Sou. jury question been would waived, And had not ordinarily jury ap- the under have been submitted to propriate they instructions, might determine from so that the an in fact exist the agency evidence whether did purpose Oil executing particular bond. Standard Rep. 24, 138 Nickerson, 55, opinion Co. vs. Sou. filed Nov. present at the term. Judge, The Circuit sitting as a facts, spe- trier of the cifically found that surrounding circumstances negotiations for the bond sued on in case, well surrounding circumstances execution, its were such as and put plaintiffs, law fact acting those for the upon plaintiffs, inquiry as nature extent of the agent’s authority which did not warrant his execution of kind of applied for, and that therefore no agency fot its behalf Surety execution on of the National Company in this justly instance could be found. finding

This support has substantial in the evidence, and appellate therefore reversing court is not warranted judgment awarding ground a new trial on the support the evidence verdict, does or the ver- weight dict is of the evidence. Palatka Abstract & Haskell, Title Co. 100 Rep. vs. Fla. Sou. Nickerson, and cases cited. supra, Standard Oil Co. vs. present decided at term.

In the consideration this case the Court had has arguments benefit oral exhaustive able briefs which given us benefit of all available authorities touch- ing points issue, controlling but none them anything contrary have we found which stands to the con- ought not the verdict elusion we have reached here that disturbed. be or not there was a rati We have also' considered whether recently subject most fication, principles on under the Meyer Holding v. Nator Mr. Justice Terrell in stated Rep. 636, where it was said Co., Fla. Sou. agent, even if unauthor for whom another acts that one any part of ized, accept retain the benefits cannot liability in incurring the transaction, without also of the alleged agent’s in the to the acts transaction. cident implied from the fact But ratification cannot be agent Raie, premium paid to the because evidence was company know it the time and shows that the did not at surety accepted to nor it was never remitted any premium paid, part company. nor Neither did this obligee’s pay- it, company’s treasury, and ever reach that imputed had to' with notice at the that Raie ment Raie time authority premium the bond for which the no to execute company paid, was as ineffective to bind the equally was through payment was Raie’s unauthorized execu- bond, to execute of the because the lack tion accept precluded the existence of doing something company premium for behalf surety expressly disavowed. which the indemnity agreements executed The retention of the equally insufficient to show applicants for the bond indemnity agree- particular bohd. These ratification of this general appear be so framed as to constitute ments only indemnity for this continuing one contract may applied for any be bond, for all bonds which but parties the same futuro. agreements under these because of a claim Ratification bond, as to this urged against the indemnors nothing to show that implied there is cannot- be because bona entitled to assert was not fide indemnity seeking agreements in indem- on these reliance company is nity expenses incurred for costs already executed seeking cancellation of the bonds subject for equity to cancellation would claim just equitable cause, such a would or whether indemnity provided might have upheld not. The applications bonds damages arising out covered all, if such was the never issued at which were said that mere company’s claim, bona it cannot be fide general continuing rights in- claimed under assertion ratify demnity agreement the bond of this character would damages application, the arose from where the claimed the bond. authority part the

Actual conventional the in this case was un- agent the bond sued on to execute doubtedly lacking. right recovery So plain- whatever acquired in' tiffs error company was reason execution of the bond delivered to them showing apparent authority under circumstances authority, coupled would amount to real with the absence part of notice on the obligees as to limitation powers of the it. to execute appear question Under circumstances such as here the of agency question primarily was a of fact where the evi- conflicting, here, question dence was as it was and that adversely plaintiffs determined to the in error the ver- Judge. dict of Circuit

This is not a ease where to execute and deliver Champenois the bond existed as was the case in & Blank v. Co., Mississippi, supra, Donald from where there was a question fact, raised its exercise in to which the statute estopped deny. company is Neither it a case where was vested with the terms of frame sign bonds be issued and to so framed and attach it, premium receive seal Realty therefor, Co., as in New Corklite Co. vs. Rell from York, especially supra, in when the amount of the bond volved here taken into consideration in connection with power only up $50,000.00 any case, to execute bonds to' except special permission company. with from the anywise disapproving

So without doctrine of those plaintiffs strongly rely, on which eases error most we inapplicable find them to be demonstrate error finding below, holding, of the Court and so we must affirm judgment rendered.

Affirmed. J., P.J.,

Whitfield, Terrell, concur. Buford, C.J., J., opinion concur in Brown, judgment. J., dissents.

Ellis, Rehearing.

On. 15, 1931, Term, J. On December at the June Davis, Court, judgment in of this we affirmed the this ease. Rehearing granted re-argued been before has and the cause the Court en banc.

By petition filed, plaintiffs rehearing for counsel for disposing suggest in error that in of the case as we did on erroneously original Court con- its consideration that the contrary to L., S., Section 6307 C. G. 4345 R. G. strued intent, principles in- legal in violation of settled for its giving terpreting statutes, consideration and without due public protected that to the interest intended to be enactment.

By petition rehearing for it is asserted that this Court has “whittled down to a mere rule of evidence” what plaintiffs important statutory in error is “an lia- assert bility;” presump- that we have substituted “a rebuttable equivalent tion” “actual created for statute;” place of substantive law” “in of a rule up procedural law.” we have set “a rule argument thereupon because statute made is that any doing provides person fo'r a statutory acting as acts shall be “deemed” of the described “agent company must company,” as said statutorily through Raie, its held the mere act of be liable actually bond, agent, delivering whether signing and notwithstanding actually not, thereunto or and authorized brought agency all limitations on his known knowledge obligee. broad inclusive But in terms is not so statute suggests. plaintiffs petition rehearing error’s conclusively Such not undertake to a statute as this does scope fix of those who be and extent of the statutory terms, agents as between come under its Supreme person. The United and third States Hilton- in Mutual Life Ins. Co. vs. Court so indicated Sup. 613, 1202, 36 Ct. 676. Green, 241 U. S. 60 L. Ed. Supreme Court said And what the United States ground disregarded on the last cited case cannot plaintiffs in error contend. is mere “dictum” fully ruling A considered in a and decided case merely appellate because it was not cohrt is not dictum upon account conclusion reached one necessary, on of one question question, to consider another the decision which judgment. controlled would have arising questions properly in a case under Two oh more may determined, though even pleadings proof upon dispose merits, its either one would of the entire case long properly as it holding dictum, and neither so is Galloway Darby, raised, considered, v. determined. (N. S.) 782; 44 L. R. A. 105 Ark. 151 S. W. Pauly, 549, 210, 159 115 Ann. Cas. King v. Cal. Pac. 1912-C

127 1244; 538, McFarland v. Bush, Tenn. W. S.

A. S. R. 27 L. R. A. 662. recognition judicial being declarations as “obiter special

dicta” in part instances is a of the doctrine of “stare decisis.” The doctrine of “stare decisis” would any not in applicable event to the authorities relied on in this case, because of the fact that we are not bound rulings Courts, Supreme Federal even the Court of States, construing United language in of our own statutes.

But, time, at the same Courts State of last resort must necessity recognize that in the domain of insurance con- tracts and agreements, Supreme decisions of the Court of cohstruing the United States statutes, state especially own, highly our persuasive are if controlling. many So arising controversies in connection with insurance suretyship business litigated for hire have been courts, very the Federal that the best reasoned and most subjects authoritative cases on these are most often to be reported found in the Supreme decisions of the Court of States, the United Appellate and the other Federal Courts. L., Section 6307 C. G. 4345 R. S., require G. does not us, petitioners “deem,” as insist, to “regard” “consider” and Raie in the transaction case, involved in this agent as the of the delivery the execution and bond in suit. go The statute terms does not that far. merely provides It every person who shall so far represent any surety company specified as to do certain acts, shall be acting “deemed to -be for said com- ’ ‘! pany, ’—not that he shall acting be deemed to be every said to' may do act he under- take to regardless do character as such” assumed principles other general agency may law of applicable. This is the universal rule even in cases where actual, agency imputed, there is an not an shown and per “qid liability fix relied on under the maxim facit per alimn, qid se.” facit agree plaintiffs statement contained

We with the . con- petition rehearing for a statute error’s what surety company templates that, foreign author- is when a it, appli- receive agent or to izes an to deliver bonds by agent it, and such re- cations for to be executed bonds by application for ceives an a bond to be executed apparently ex- delivers a bond company, and thereafter good accepts i/n company, one who' the bond ecuted subsequent agent protected claim that is faith company, was not in fact who executed it in behalf of the technically formally execute authorized to it. pointed opinion heretofore out,

But as we have application is in its filed, statement of the law limited agent was not only, cases fact that the to tho'se where the formally technically act, is not affirma- authorized to tively previously made known to the shown to have been contrary party him in with belief that he who deals technically formally qualified act, in is fact particulars in which he does act. now, parties held, and still

We have further hold statutory inquire agent, are not bound to dealing with a pur- things he on his to do to limitations authority. gone so far ports do But we have not with deprive our statute to' as to hold that effect establishing evidence of the benefit of authority, placed agent’s on its known limitations dealing persons ignored with such or deliberately disregard, peril. their at undertaken prima only status, agency is relationship, scope But the facie, conclusively, but fixed the statute. agents as between the and extent conclusively persons so company is not fixed third liability fasten irrebuttable the statute itself may sign, agreement bond or sign from it. Where are the mere fact that he does there limitations, party knows, or opposite known which the statutory attempted know, should will acts of a leave the agent surety company wholly of an insurance unau- or particular instance, thorized in a such known limitation recognized agent’s authority judicial on the must in proceedings. its

We than are unable to into the statute more read language person imports. precise is, The that a language statutory particulars, acting company for the in the agent company.” “shall acting be deemed to as said saying he equivalent not shall be This is the deemed particular acting company to be as for the may many Agency court. transaction the exist before cases, powers scope the extent but exist without statutory agency on, This is true is relied where claimed. outstanding agency real is The well as where shown. fortify ability to purpose the state’s of our statute was to by surety companies in regulate business the transaction of bearing on particular of tax- It has a matters state. surety companies. For the applied this reason ation as agency non, the vel but does fixes in law status statute every scope go fix in case and extent of far not so as to matters, in- agent’s powers statutory per- and third volving between the transactions way Supreme Court of United sons. Such is con- own statute, and such our States has construed indicated. it,of as we have heretofore struction petition presented matters are Other consideration. our careful had ques- Judge in the case both as to deciding Circuit

The obviously plain in- fact, it that he made law and tions o'f every plaintiff in error on con- against find tended to or which could have hypothesis which was legal ceivable been, urged support recovery her. Therefore this is not a judgment case where we for a should reverse the new trial through applica- because was arrived at principle legally applicable tion of law not con- trolling case, practice suggested in the was proper Barry v. Walker, Rep. 103 Fla. 137 So. 711, and cases cited. finding Judge plaintiff of the Circuit only

in error, question right of an being execute bond under seal without thereunto au- seal, thorized under pre- but on the merits of the case as every theory. In previous opinion alternative our sented importance we findings against attached no to the Court’s plaintiff theory on the agent’s lack of a in- sealed giving power strument him seal, to execute a under because of our as legal particular view to the effect of the relating statute agency hereinbefore re- ferred to. importance judge’s

But we do attach express the trial finding put plaintiff that the circumstances so the in error inquiry, bring her, as to home to her representatives, agent’s express implied authority the want of or in the first instance to execute the bond sued on. All that Raie when concede first called on stated that he was not authorized to execute kind of bond that was being obligee later so,. executed. This should have ascertained whether the needed inwas fact there- given Raie, if given, (in after not the bond the ab- ratification) sence of company. does bind the judge sat in trial- this case as a trier of facts, jury expressly inasmuch as trial had been waived parties, Upon jury as the recohd shows. writ error in .cases, we have stated the rule to be.: upon assignment passing “In upon based rul ing denying of the trial court in a motion for a new questions sufficiency

trial, of the evidence to' sustain verdict, guiding principle appel for an late may court is not jury what it ought think the to have done, may or what court think it would have done had it been sitting jury as a case, but whether jury reasonable men the could have found such verdict from the question evidence adduced. If this can be an swered in affirmative, the action of the trial eoiirt upon such motion should not be disturbed.”* ease, In judge where the trial decided the case plaintiff facts, sufficiency error on the and the Judge’s finding the Circuit questioned of facts is on the ground alleged of an insufficiency of the evidence to sustain judge’s verdict, guiding principle appellate for an court is not what we think Judge sitting the Circuit as a jury ought done, what we would have done sit- ting jury as a in the trial o'f the ease, but whether as a reasonable judge man the sitting trial as a trier of the facts, could have found such a find, verdict he did from the evidence adduced.

The evidence shows that after applied the bond was meetings parties every day interested held were from September Monday, 28th, through Monday, 5, 1925, October except Sunday, delay closing that the the transac- inability tion was caused bond; secure the Wyatt, Mrs. Parsons Mr. attorney, her went to the office Vanderpool one and there ques- discussed with him the securing surety bond, tion of Mr. Vanderpool and that authority stated that he not did to bond, write such a but that a Mr. authority Raie did have such and that it through have to would be Raie pro'cured; that a bond be Mrs. that Parsons was anxious to return to New York and requested stay day she was longer that to over a of two Surety because Raie, the National Company, communicating with his home in was office New York, en- Sou. *See third Rep 47. headnote in A. C. L. R. R. Co. vs. Levy, 68 Fla. 234, Mrs. authority bond that to issue the

deavoring get to explicitly explained both demanded; that it was Parsons attorney, that Wyatt, Mr. her to Mrs. Parsons and authority to write without Raie was at that time get special au- endeavoring but to question, bond in was thority it. York to execute from New at- last conference that the further shows

The evidence in office held by Wyatt Mrs. Parsons was tended Saturday after- Reed, attorney, 4:00 o’clock on at of Mr. an ex- again was it 1925. conference noon, October At that Wyatt agent Raie Mr. plained to Parsons and Mrs. yet bond, had not received to execute the was but it expecting endeavoring at moment and had been Surety Company communicate with National on the telephone in long power distance assured order his execute the bond. The transaction was closed and delay closing October bond executed admittedly parties all transaction was due the act o'f waiting to obtain for Raie executed bond, undisputed this seems to an fact in indeed ease. printed was not a

The bond itself stock form of bond Surety Company and turned devised over to Raie agency. part paraphernalia On the contrary, specially up attorneys repre- awas bond it drawn ordinary senting bond, Mrs. It not an Parsons. was kind of unusual was a bond of the most character condi- but attorney prepared, As Mrs. tions. was drawn Parson’s signed by attorney Surety in fact for to be the National signed by attorney Company. Raie When executed it was by any accompanied proof of a fact, power but attorney authorizing him to execute it. just before the was executed

Raie testified Vanderpool Company’s him & he called to office absolutely essential, that it was he was informed where go to have the through, o'rder sale real estate that signed forthwith; thereupon be that he at left word his that if Fort Lauderdale he should receive office day Surety Company from during wire the National Vanderpool that it him in should sent to care Com- & pany’s Miami; officein that afterwards he went Vander- pool Company’s inquired officein Miami if there was & telegram for him not; there and was told that there was Vanderpool that he coming afterwards met down from his Vanderpool they office and that Mr. him if informed that going to were secure the business at all the bond had to be cent, signed Vanderpool day; twenty per that had that signing commission involved in the of the bond and had everything try parties done he 'to could to hold the different in the real deal until concerned estate could procured to execute them the bond which Mrs. Par- demanded; Vanderpool’s sons that at insistence he said go that he ahead bond, would and execute the and went upstairs having and did execute it without ever heard from Surety Company giving home office the National him authority so to do.

Plaintiff, testimony, attempted prove to rebut Raie’s Vanderpool just the witness before the bond was signed delivered, Raie, purporting repre- surety company, telegram sent the him a showed from the gave Raie own use his go bond, discretion and ahead and issue the after production telegram of such that Raie then and there desk, bond on signed it, put laid the witness’s the com- pany’s seal it and that was then taken over to be representatives delivered to the of Mrs. Parsons.

Plaintiff in error contends that Raie’s conduct execut- ing days delay, supposedly the bond after several due to awaiting approval of the home office of the National Surety York, Company repre- of New amounted ato false

134 approval

sentation that he of his had secured sign when in fact he did the bond. deliver But whether to a there was such conduct as amounted obligee false representation, so, if or not re whether upon lied same, determination involved the Judge disputed question Circuit of a of fact which would necessarily jury to been submitted to a determine jury had a present.* This been issue fact Circuit Judge adversely plaintiff error, decided is to and there legal substantial support findings. to evidence surety company by sharply The its evidence contra- testimony dicted Vanderpool concerning of the witness alleged telegram authorizing signed the bond evidently Raie. Judge The Circuit believed that such no telegram purported was ever sent or to have been ex- Vanderpool plain hibited as testified to. It is from the Vanderpool evidence if representa- that ever informed the telegram tives Mrs. Parsons that such a had been shown him, likely which he would time, have done at the that representing no right one Mrs.' Parsons demanded inspect alleged telegram any inquiry nor made to con- firm contrary, strong its existence. On the is inference representatives perfectly Mrs.'Parsons’ were satisfied being signed with signature furnished a bond with the purporting Surety Raie to act as the National Company further without of his evidence sign it. specific finding Judge of the Circuit is that surrounding negotiations circumstances bond, for the surrounding as well as delivery, those its execution and put plaintiffs such as acting were and those plaintiffs, 'for upon inquiry as to the agent’s nature extent of the approval vs. Sou. *For Chase, Rep. the rule to this 764. The burden 88 Fla. Court effect in Watkins Sou. see 21 R proof Rep. vs. is on the C. Sims, L. 820, 81 Fla. 730 plaintiff. which is cited with See Miller (734); authority, inquiry they they pursue, failed to else agent’s par- would have found ticular instance did not exist. evidence,

Under the circumstances disclosed we say findings cannot error of fact the Circuit Judge has been shown to us extent as to authorize wrong Judge the verdict of the Circuit conclude plaintiffs that it should have been instead rendered surety company. of the defendant The court found every plaintiffs premise. findings in error on of fact Judge having the trial we have heretofore affirmed application properly ap- been arrived at him the plicable controlling principles of law which led to court’s decision favor of the defendant on merits of the case as shown the evidence.

A most careful reconsideration of the ease all its as- pects, aid and with the of the able briefs which have been plaintiffs error, furnished us counsel for the has previous failed to convince us our affirmance of the judgment wrong, and it must therefore adhered rehearing. on rehearing. on

Reaffirmed C.J. Buford, Whitfield, Ellis, Brown, Terrell J.J., concur. sole, Appellant,

Nannie C. a feme v. Benson, First Trust Savings corporation, Florida, laws of Bank, & Appellee. Trustee,

134 So. 493.

142 So. 887.

Division B. May 8,

Opinion filed 1931. rehearing granted Petition for 1931. May Opinion rehearing July 9, filed 1932.

Opinion Rehearing filed December Second

Case Details

Case Name: Parsons v. Federal Realty Corp.

Court Name: Supreme Court of Florida

Date Published: Dec 15, 1931

Citation: 143 So. 912

Court Abbreviation: Fla.