57 Fla. 180 | Fla. | 1909
This case has been before this court before and the decision is reported in 54 Fla. 251, 44 South. Rep. 1014. Upon the record as then presented the judgment below in favor of the defendant in error, Douville, was reversed because of the admission of certain hearsay testimony. As the case is here again on writ of error from, a judgment of the court below we deem it necessary to state the issues on which the case was tried, and the substance of the testimony. The amended count in the declaration on which the case was submitted to 'the jury is as follows:
State of Florida”; Escambia E. E. Douville, County Circuit Court, v. First Judicial Circuit.
Skinner Manufacturing Company, a Corporation UNDER THE LAWS OF Illinois.
Plaintiff sues defendant because prior to the institution of this suit, to- wit, on th& first day of July, 1904, the defendant employed the plaintiff, who is a real estate and timber land broker, to procure si purchaser for the pine timber lands owned by the defendant, lying in Escambia and Santa Rosa counties, in the State of Florida, represented by the said defendant to be about 100,000 acres, together with mills, plants and railroads located thereon. That the plaintiff in pursuance of his employment as such broker did procure and introduce to the said defendant one C. M. Covington, and that the defendant subsequently sold all of said lands to the said C M Covington, H. L. Covington, J. R. Saunders and
To this count the defendant company filed the following pleas:
1. That it did not undertake and promise as in said amended declaration alleged.
2. That the sale of the property of the defendant in said amended declaration alleged was not caused or procured by the plaintiff or by his efforts.
3. That the plaintiff did not under any employment by the defendant cause or procure to be made the sale of the property of the defendant to C. M. Covington and others in said declaration alleged.”
The plaintiff joined issue on these pleas, and the trial was had thereon resulting in a verdict and judgment for Douville of $15,524.93.
An assignment is based on the admission in evidence of the following telegram:
“August 6th, 1904.
E. T. Skinner,
Battle Creek Sanitarium,
Battle Creek, Mich.
Negotiating with Covington sale of your lands. Can we close?
Night. Douville Timber Land Co ”
The defendant objected to- the admission of this telegram upon the ground that it was not the best evidence, and that there was no evidence it was ever delivered to the telegraph company for transmission. These objections were overruled and the telegram was admitted, in evidence.
There is no question that if there had been positive proof that the original telegram had been delivered to. the telegraph company and was lost or destroyed the-carbon copy when proven to be such would have been proper evidence. But tfiere is no positive proof that the original was ever delivered to the telegraph company for transmission to Battle Creek. The telegram may have-been addressed to Mr. Skinner at Battle Creek and yet never transmitted to him. There is no proof that Mr. Skinner was at Battle Creek on August 6th, 1904, or that he ever received the telegram. On the contrary Skin
The defendant requested the court to give the following instruction to the jury: “If the plaintiff and its agents withheld from Skinner or the defendant any notice that they claimed commissions for effecting the sale of the defendant’s property to Saunders and his associates in order that the defendant might be induced to sell the property under the belief that it would not have to pay commissions therefore, the plaintiff cannot recover.” The defendant also requested 'that the jury be directed to find a verdict in his favor. These instructions were refused and these rulings are assigned as error Mr. George Douville, one of the agents of Mr. E. E. Douville, who represented him, and to whom he turned over the completion of the sale of the defendant’s lands, when he went North in the Summer of 1904, testified as a witness for the plaintiff that he had his first conversation with Mr. Saunders, who took 'the option on the lands .which resulted in the sale to Saunders, Covington and others,, late in September, and learned from Saunders that negotiations were pending, and the deal ■for the lands was about to be closed, that they (himself and brother) told Mr. Saunders then that they had a deal with Skinner and were expecting a commission; that Saunders said be quiet dfoout the commissions ‘
In Cotton v. Holliday, 59 Ill. 176, it is said that an agent must not put himself during the continuance of his agency in a position adverse to that of his principal. ('See the discussion of I this question and authorities cited in the note to the case of Leathers v. Canfield, (Mich.) 45 L. R. A. 1, text 33.
In 2 Clark and Skyles on Agency, § 763, it is said: “One of the first duties that a broker owes to his client is to remain loyal to the latter’s interests. By reason of the fact that the client has employed him in preference to others great confidence and trust has been reposed in him. 'Consequently it is his.duty to do nothing that will abuse or destroy that confidence or trust, but to always remain faithful and loyal to his principal’s interests. Thus it is his duty not to undertake in
Rule 66 of the Circuit Court in Common Law Actions provides that “in every species of actions on contract all matters in confession and avoidance including not only those by way of discharge, but those which show the transaction to- be either void or voidable in point of law on the ground of fraud or otherwise shall ¡be specially pleaded.” The o-nly exception to the rule requiring defences to be pleaded that we are aware of, is where the case of the paintiff is based on a violation of some statute, or .of some rule of public policy or public morals,— in other words where the contract sued on is illegal. 2 Hughes on Procedure, pp. 765, 934. In the instant case the contract sued on was not illegal and the peculiarity of it is, that the defensive matter which the defendant strove to- avail itself o-f by instructions to the jury came out in the plaintiff’s evidence. It does not appear that the defendant previously had any knowledge of what had occurred between the Douvilles and Saunders. We think that under our system of practice the defendant, if it desired to avail itself of this defensive matter should have requested permission to file an additional plea setting up this matter as a defence. Under our liberal system of amendments which looks towards reaching' the real merits and justice of the controversy such a request would have been proper. The defendant we think mistook its remedy in endeavoring to protect itself by instructions, without pleas presenting the .issues on which they were based. As we can perceive no evidence of an intention to delay, or obstruct the administration of jus
There are several other assignments of error, but they do not seem to us to be of vital importance and we do not think it necessary to discuss them. The judgment of the Circuit Court is reversed and a new trial is granted.