40 So. 2d 553 | Fla. | 1949
Lead Opinion
Action in replevin by Josiah Richardson against Mrs. A.C. Gourlie to recover a ring pledged as security for payment of a debt. From a judgment entered upon a directed verdict in favor of defendant, plaintiff appeals.
Judgment reversed. The appellant, who was plaintiff in the trial court, brought an action in replevin against the appellee, the defendant, to recover a ring of the stipulated value of $1,250. The ring had been pledged by the plaintiff with an attorney to secure the payment of a fee of $400, and shortly afterwards the attorney, with the permission of plaintiff, delivered the ring to A.C. Gourlie, who, in turn, presented it to his wife. Later the husband died, and demand was made by plaintiff upon the wife to return the ring in exchange for $400, the amount of the debt. At first she demanded interest, which the plaintiff refused to pay; then in a later conversation between them she reported that she had lost a stone from the ring, whereupon the plaintiff told her that if she would accept the amount of the debt and surrender the jewelry he would "stand the loss" of the stone, presumably intending that the value of the missing stone would offset the charge for interest. The defendant declined this proposition, and the plaintiff instituted the suit in replevin, depositing $400 in the registry of the court.
At the conclusion of the testimony the court instructed a verdict for the defendant, and the judgment was entered accordingly.
The original transaction between plaintiff and the attorney was purely the bailment of personal property as security for a debt, and when the ring was delivered by the bailee to Gourlie and by Gourlie to his wife, no greater right was created in the property than that which had vested in the first bailee.
The doctrine of caveat emptor applied in the successive transfers, and there is nothing in the record even to suggest that there were any circumstances which would relieve the transactions from this rule. So it seems that the pledgor, upon paying the amount due, should regain possession from the person who ultimately received the property — namely, the appellee.
The plaintiff endeavored to buttress this position by offering testimony of a conversation with Gourlie about the terms of the original pledge to the attorney, and *554
an objection to this testimony was sustained on the ground that it would violate Section 90.05, Florida Statutes 1941, and F.S.A. Stripped to the phraseology which would be relevant to the present controversy, that statute provides "that no party to [an] action * * * shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time * * * deceased * * * against the executor, or administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person * * *." Appellee did not fall into any one of these categories (see McDougald v. Covey,
The judgment is reversed.
ADAMS, C.J., and TERRELL, CHAPMAN, and SEBRING, JJ., concur.
BARNS and HOBSON, JJ., dissent.
Concurrence Opinion
I concur in the dissent prepared by Mr. Justice BARNS. The statute of limitation which he quotes is unquestionably controlling. It has been suggested that this statute does not begin to run until demand for the thing bailed has been made. However, there is a well established and justifiable exception. Such exception comes into play when a conversion takes place or when "any other definite act inconsistent with his duty as bailee" is committed by the bailee which amounts to the repudiation of the bailment. Particularly does such action loose the spring of the statute when notice thereof is brought home to the bailor. Chapter 342, Vol. 6, American Jurisprudence, page 426. *555
The facts of this case show that Watson discharged a debt to Gourlie by, in effect, selling the pledged ring to him with the knowledge and consent of Richardson. This transaction was either a conversion or a novation. If a conversion the statute has run and the action is barred. If a novation the terms of the new contract were not established by plaintiff's evidence. In any event, it was an act which was inconsistent with the bailee's duty as such and notice thereof to the bailor is clearly disclosed. Sec.
The final judgment entered by the learned Circuit Judge should be affirmed.
Dissenting Opinion
The testimony proffered and refused, on which error was assigned, was as follows:
"Mr. Rood: The plaintiff offers to prove by the witness, Josiah Richardson, that the ring in question was turned over to Mr. A.C. Gourlie by — that it was turned over to Mr. Gourlie, and that at the time the ring was turned over to him he was told by the witness that the ring had been pledged to secure a $400 attorney's fee, and that when the witness paid the $400 debt the ring was to be returned to the witness.
"Mr. Fowler: To which proof the defendant objects, for the reason, among other things, that it is incompetent, irrelevant and immaterial, and that it specifically violates the statute regarding the testimony of a pary in litigation as to communications and transactions with a deceased person.
"The Court: Is that all?
"Mr. Fowler: Yes, sir.
"The Court: I sustain the objection."
The transaction was with Mr. Gourlie, and Mr. Gourlie is dead. The testimony proffered concerned a transaction between the witness and Mr. Gourlie, and it is offered by the witness in his action against Mrs. Gourlie. The witness is interested in the result of the action. Mrs. Gourlie claims the property in question as donee of Mr. Gourlie.
The point is: Is Mrs. Gourlie an assignee of Mr. Gourlie? I think so, and that his testimony as to the transaction with Mr. Gourlie is excluded by Section 90.05, F.S. 1941, F.S.A. In this instance, the word "assignee" was used as one to whom something was transferred, and does not rest on the character of proof of the means by which Mrs. Gourlie became the "assignee" of her husband's interest in the ring.
The defendant filed a plea of the statute of limitation, that the action had not been commenced within three years. The ring was placed in the hands of Mr. Watson in 1935, who shortly thereafter delivered it to Mr. Gourlie, who died in 1943. Plaintiff's declaration was filed May 12, 1947.
Section
The Statute had run and plaintiff's cause of action had been placed in repose.
HOBSON, J., concurs.
