42 Fla. 504 | Fla. | 1900
From the abstract of record, to which no' exceptions were filed by defendant in error, and upon which alone the case must be disposed of, we extract the following statement of The facts: On November 14, 1894, the bank sued Robeson upon a written obligation dated March 24, 1893, whereby Robeson promised to pay to the order of the bank $990 three months after date, with interest at 10 per cent, per annum after maturity. The pleadings are somewhat confused, but the issues submitted to the jury were framed upon pleas of payment, set-off and usury, the latter plea alleging that the note included $30 for three months interest on $960. According to the evidence as abstracted it apears that on March 24, 1893, Robeson owed the bank $960, evidenced by two notes, and on that day he executed the obligation sued upon which included $30 above the amount of the, debt as interest for three months’ forbearance. Defendant deposited with the “bank as collateral thirty shares of stock in a certain corporation, with power of attorney to sell same to pay the note. Defendant being a customer of the bank, also deposited with it for safekeeping
1. The defendant filed a plea upon equitable grounds which upon motion was stricken, and this rul
2. The only other assignment which we consider it necessary to notice is that relating to the motion for a new trial. It is insisted that the verdict was contrary to the evidence, and it certainly is clearly contrary to the evidence as we find it stated in the, abstract of record. Under the terms of the sale of defendant’s stock as agreed upon by Anno and the bank, and ratified by the defendant, the proceeds of the sale, viz: the two notes and the cash payment, were to be taken by the bank in settlement of the note sued upon. The notes were delivered to the bank and afterwards paid, and the cash payment was made by check to the bank’s agent Anno, and he afterwards paid $300 of the amount oyer to the president of the bank. If the $30 usurious interest be deducted from the note sued on, these sums paid to the bank and its president are entirely sufficient to liquidate the amount due upon the noté. We think the evidence as we have stated it shows clearly that Anno was acting as agent for the bank; indeed, there is no evidence in the abstract showing that he was not. The money was paid to him as the bank’s agent under an agreement that defendant’s note should be surrendered, and he actually turned over to the bank the two Smith notes and paid the president $300 of the, cash payment.
The judgment will be reversed and a new trial granted.