50 Fla. 456 | Fla. | 1905
This is the second writ of error in this case. The decision of this court on the first consideration is reported in 46 Fla. 443, 35 South. Rep. pages 9 to 13 inclusive, which exhibits the two counts of the declaration, the demurrers thereto and the rulings thereon. After the reversal here the plea of not guilty was filed on the 30th of July, 1904, a trial was had in November, 1904, and a verdict and judgment rendered for the present defendants in error.
The first five assignments of error are predicated upon rulings of the court admitting in evidence copies certified by the sheriff who held the originals of five different executions on judgments in favor of five different judgment creditors against B. H. Powell which were offered in evidence by the plaintiffs.
The sixth assignment is based on the ruling of the court permitting Edward Williams, a deputy sheriff, to be asked the following question, viz: “I would like to show you these certified copies of executions against B. H. Powell and you may say whether or not effort has been made to collect these executions by the sheriff.” For the reasons stated in considering the foregoing assignments, we do not deem it necessary to pass on this assignment, as the evidence elicited was merely cumulative upon a proposition not disputed.
The seventh assignment is based on the ruling of the court permitting plaintiffs- to ask their witness J. B.
The eighth assignment is based on the refusal of the trial judge to grant the motion of defendant to strike the
The ninth assignment of error was based on the alleged action of the court in striking that part of defendant Up-church’s testimony in which he stated that at the time he wrote the letter of February 11th, 1898, nothing was said between Powell and witness “about selling mules on a credit.” There was a good deal of colloquy, but we cannot discover from the record any ruling by the court on this matter or any objection or exception to any ruling of the court upon it.
The record shows that Upchurch subsequently did substantially answer this question. He was allowed to testify that in writing the letter he had no other object whatever in view than to bring a man who wanted to buy some mules in connection with a man who wanted to sell them, and that he thought he was doing Mizell a favor. This testimony disclosed that he had no motive to deceive Mizell. There is consequently no error shown, assuming that the question was unobjectionable.
The eleventh assignment is “The court erred after plaintiffs sought to prove,by witness' (Upchurch) that, in a certain conversation he had testified about, that Mizell had said that the taking of security for the mules would have been a reflection upon Dyal & Upchurch, in sustaining plaintiffs objection to the question “would it have been a reflection upon Dyal & Upchurch if he had declined to sell the mules on a credit?” It is not contended in this assignment that Upchurch ever testified that Mizell made the statement referred to, and if he had we can discover no error in the ruling of the court sustaining the objection to a question calling for Upchurch’s opinion upon the effect of Mizell’s declining to sell the mules on a credit, which is a different proposition.
The twelfth assignment under which is included six several assignments is in these words, viz: “The court erred severally in giving the following written charges severally given by the court on request of plaintiffs, and severally' excepted to at the time, severally numbered 1, 2, 3, 5, 6, 7.” These charges are as follows:
*463 “1. The court instructs you, gentlemen of the jury, that, if you believe from a preponderance of the evidence that the defendant wrote the letter set forth in the plaintiff's declaration, that the defendant represented to the plaintiffs that one B. H. Powell was a man of integrity and fair business dealing and one who could be safely dealt with and trusted in the usual course of business; that such representation was made by the defendant to the plaintiffs, meaning that the plaintiffs should act upon it; that such representation was false and said Powell was not a man of integrity and fair business dealing and was not a man to be safely dealt with and trusted in the usual course of business; that the defendant, at the time he made the representation did not know whether such representation was true or not, and had no reason to believe he knew, but negligently and recklessly made such representation ; that the plaintiffs believed such representation to be true in fact and believing such representation to be true he acted upon the same and sold to said B. H. Powell eight mules and harness or the value of ¡$852.00; that said Powell was insolvent and parted with said mules and plaintiffs did not and were not able to obtain payment therefor from said Powell; that the plaintiffs have been damaged, if you find from a preponderance of the evidence the foregoing, then the court instructs you that as a matter of law the plaintiffs are entitled to recover, and your verdict must be for the plaintiff.”
“2. The court further instructs you, that the plaintiffs in this action are suing the defendant in an action of deceit, and in order for the plaintiffs to recover it is necessary for them to prove by a preponderance of the evi dence that the defendant made the presentation set forth in the declaration of the plaintiffs meaning that the plaintiffs should act upon it; that such representation was*464 false and that the defendant when he made it knew it to be false, or did not know whether it was true or not; that the plaintiffs believing such representation to be true acted upon it and were thereby injured, and if you believe from a preponderance of the evidence that the plaintiffs have proven the foregoing, then your verdict must be for the plaintiffs.”
“3. The court further instructs you that it is not necessary for the plaintiffs to prove that the defendant had actual knowledge of the falsity of the representations made, if you believe such representation was made and it was false, but it is sufficient that the defendant-made the representation as of his own knowledge or in such absolute unqualified and positive terms as to imply his personal knowledge, when, in truth, defendant had no knowledge whether the representation was true or false.”
“5. If a party has no knowledge on which to base a belief, he is considered reckless in making a statement pretending to give facts,' and if you believe from a preponderance of the evidence, that the defendant made the representation charged in the declaration, to the plaintiffs meaning that plaintiffs should act upon it, that such representation was false, that the defendant had no knowledge on which to base his belief, such representation was recklessly made, and if the plaintiffs, believing such representation to be true acted upon it, and were thereby injured your verdict must be for the plaintiffs.”
“6. The court further instructs you that a corrupt in tent to deceive is not necessary to the plaintiffs cause of action; it is not necessary that the plaintiffs should prove the representation to have been intentionally fraudulent, if the representation was known to be false, and was made with intent to induce plaintiffs to credit Powell ; if the defendant, without any knowledge of the truth*465 or falsity of the representation wrote the plaintiffs as alleged, but represented his statement as true of his own knowledge, the law infers that the defendant intended to deceive; the intention of the' defendant to deceive may be proved by showing that the defendant having no knowledge of the truth or falsity of his statement, yet represented his statement to be true of his own knowledge, the only proof of fraudulent intent required is that the defendant made a statement as of his own knowledge, which was false, not having any knowledge of the truth or falsity thereof.”
“7. You will take and treat all the instructions of the court together, and if you find for the plaintiffs, you will then proceed to assess their damages and the measure of their damages will be the loss or injury you find from the evidence the plaintiffs sustained by reason of what you find the defendant did and this is what you find from the evidence was the market value of the property sold at the time and place of sale, together with interest thereon at eight per cent, per annum to date, and the expenses the plaintiffs, you find from the evidence were put to, if any, and incurred in endeavoring to recover the property or the price thereof.”
All these charges were predicated on the following state of facts which the evidence tended to prove: “That the defendant on the 11th day of February, 1898, wrote the plaintiffs as follows:
Fort Moniac, Ga., Feb’y. 11th, 1898. Messrs. J. Mizell & Bro.,
Kings Ferry, Fla.
Dear Sir:
This will introduce to you Mr. B. H. Powell who wants*466 to buy some mules. Mr. Powell is right, and any favors you can show him will be appreciated by us.
Yours truly,
Dyal & Upchurch.”
That said letter was on that day handed by defendant to one B. H. Powell for delivery to plaintiffs, and was delivered by said Powell to plaintiffs; that at the time said letter was so written the relations between Dyal & Up-church and the plaintiffs were friendly, and have so remained to this day; that the plaintiffs had then and have now the highest confidence in the integrity and business capacity of said Dyal & Upchurch; that defendant knew the plaintiffs had mules for sale, and plaintiffs had no acquaintance with said Powell at that time; that the only representation, orally or in writing of any kind made by defendant to plaintiffs as to said Powell was the representation, if any, contained in that letter; that at the time said letter was written the defendant resided in Moniac, Georgia, the plaintiffs in Nassau county, Florida, and the said Powell in Duval county, Florida; that no evidence was introduced tending to show that defendant had at the time said letter was written any knowledge whatever of Powell’s standing as a man of integrity and fair business dealing and as one who could be safely dealt with and trusted in the usual course of business; that Powell was in fact at the time said letter was written an insolvent against whom judgments had been recovered in his own county which were not paid and had no property in his own county out of which said judgments could be collected on executions sued out thereon and sought to be collected; and the general reputation of Powell in the neighborhood was that he was insolvent; that plaintiffs on the receipt of said letter, and in the absence of other information as to said Powell than that
The objections to charge number one (1) are that it is not charged in the declaration “that the defendant represented to the plaintiffs that B. H. Powell was a man of in
The declaration alleges, among other things, that “defendant knowing the esteem and regard which plaintiffs held said firm of Dyal & Upchurch, and well knowing that plaintiffs would reply upon representations made to them by said firm,” etc. wrote the letter of February 11th, 1898, “to induce the plaintiffs to believe that B. H. Powell was a man of integrity,” &c. The letter itself, made a part of the declaration and delivered to- the plaintiff under the circumstances alleged, and introduced in evidence, fairly imports what is alleged, and that Powell would ask favors, and that plaintiffs might safely act on the letter and grant him favors in connection with the business in hand, which was the purchase of mules. The most obvious favor under the circumstances, it seems to us, would be the granting of credit upon the purchase price. The effect of our previous decision in sustaining the declaration against the assaults made in the demurrer thereto was, that the construction of the meaning of the letter was properly stated in the declaration. The construction of a written instrument is a question for the court and not the jury. Solary v. Stultz, 22 Fla. 263, text 270.
It is again contended that the damage set up in the declaration is not the loss of the possession of the mules, but was damage from the loss of the property in them, and that this instruction stated a case different from that
The rule is clear in this State that instructions of the court to the jury must be confined to the issues made by the pleadings. Highnote v. Brigman & Crutchfield, 44 Fla. 589, text 600, 33 South. Rep. 303, and cases cited. But it is also well established that when it appears that the jury were not misled by the instruction, and upon a consideration of the whole case that substantial justice has been done between the parties by the verdict and judgment, this court will not reverse such judgment because of an erroneous instruction. Ibid. and Hooker v. Johnson, 10 Fla. 198. As stated, we think the meaning of the
The language of the second, third, fifth and sixth instructions for the plaintiffs are each subjected to severe criticism in the briefs of plaintiff in error. It is contended that these instructions were misleading, state a case different from the declaration and not supported by the ruling of this court in the cases of Wheeler v. Baars, 33 Fla. 696, 15 South. Rep. 584, Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678, and Mizell v. Upchurch, 46 Fla. 443, 35 South. Rep. 9, in respect of the proper definition of the scienter, and in other respects. It would swell this opinion to a great length to set forth in full our views in regard to these objections. We have examined them carefully and are of opinion that they are untenable. We see no reason why the rulings in those cases should be repeated here.
The seventh instruction for the plaintiff is criticised as being without support in the evidence and pleadings, whether the fact or measure of damages is considered. We do not think the contention is sound. The evidence shows damage to the plaintiffs, and the court gave the correct rule for the admeasurement of damages. Furthermore it is contended, if we understand the brief, that plaintiffs! were not entitled to recover because Powell intended to deceive them at the time he purchased the mules, and by reason of this fraud the plaintiffs never parted with the title to their property, and consequently when the first note was not paid, they should immediately have brought an action to recover the mules in order to mitigate the damages as much as possible. What we have
The eighteenth assignment of error is based on the refusal of the court to give the following instruction requested by the plaintiff in error and numbered 111: “The court further instructs the jury that a misrepresentation as to a material fact, knowing at the time it is untrue, upon which the plaintiff relies is in itself actionable; but a statement made by the defendant which is tantamount to an estimate of opinion as to value, condition or character is not actionable, unless the party making such misrepresentation resorts to fraudulent means to prevent the party who acts upon it from examining for himself into such misrepresentation.”
The evidenec does not disclose the fact that the plaintiff in error, Upchurch, had any opinion whatever when he wrote the letter of the 11th of February, 1898, as to Powell’s value, condition or character, except as stated in the letter. It does not appear that he was therein expressing an honest opinion based on a supposed knowledge of Powell’s character or financial condition. That letter, doubtless, written hastily, and recklessly in our opinion, implies that he had knowledge of Powell’s- character and standing; that Powell, who wanted to buy mules from one who wanted to sell mules, was "alright” in the sense stated in the declaration, and that Powell would ask favors in buying mules, and that favors could be safely granted to him. In other words, that the declaration sets up substantially the meaning of the letter under the circumstances stated therein, and under the evidence predicated. We therefore think the instruction numbered 111 was properly refused as being inapplicable to the 'evidence. We do not regard this as a case of “Simplex commendation
The only other assignment which is argued is one contained in the motion for a new trial, which was overruled, that the verdict is contrary to the evidence, or not supported thereby. The contention in the brief of plaintiff in error is that the evidence showed that the M'izells had never lost their property in the mules by reason of Powell’s fraud and, therefore, they could have recovered them, and consequently that they were not entitled to recover the market value of the mules at the time of the sale. We have alrady given our views of this contention.
The judgment of the Circuit Court is affirmed.