44 Fla. 253 | Fla. | 1902
This 'cause was referred by the court to its commissioners for investigation who have reported that it should be reversed. After a careful consideration the court is.
The suit wa® by the defendant in error against plaintiff in error, declaration originally filed containing common counts for goods, wares and merchandise sold and delivered ; for work and labor done; for money lent; for money paid; for rnloney received, and fori an account stated. Subsequently a special count was added alleging that E. J. Baker, deceased, in his lifetife contracted with I. T. Carter in his lifetime for the latter to locate and survey lands situate in the counties of Echols and Clinch, State of Georgia, and for such services it was agreed by and between said parties that Carter’s compensation should be equal to one-half the value of the lands so located; that under said agreement Carter in the lifetime of Baker located and surveyed large tracts of land, to-wit: Twenty-five lots in Clinch county and twenty-five lots in Echols county, each of said lots being of the value of $200; that Carter for value received transferred and assigned all of the ®aid claims and' demands against Baker to plaintiff, of which defendant had due notice, and that he neglected and refused to pay the same, though often requested to do so, to the damage cf plaintiff in the sum' of $3,500. Pleas were filed to the original declaration and one to the special count which were treated in the trial court as the general issues to all the counts; The trial, which was a second one, subsequent to the reversal in this court (Withers v. Sandlin, 36 Fla. 619, 18 South. Rep. 856), resulted in a judgment against plaintiff in error, administrator of the estate of E. J. Baker, deceased, for $3,016.84, to be levied of the goods and chattels, lands and tenements of the estate of E. J. Baker, deceased, in the hand®
The case was presented in the trial court in a very confused way, an dthere is some doubt whether the suit is against plantiif in error in his representative capacity as administrator, or individually, and also whether the pleas filed are sufficient.
As no objection was made by demurrer or otherwise to'any of the pleadings, we will consider the case here as it was treated in the trial court as one against plaintiff in errofijajn his representative capacity as administrator of E. J. Raker, deceased, and examine such of the objections presented as are' deemed essential.
To maintain the issues on his behalf plaintiff below offered in evidence the following account-with affidavit and endorsement thereon, filed as bill of particulars, viz : E. J. Baker' to I. T. Carter, Dr.
Sept. 15, 1888. For surveying and locating fifty- B eight lots of land in Echols and Clinch counties, State of Georgia......................$2,750 00
To five nnofi’ths' sendees rendered E. J. Baker, ending Nov. 23rd, 1888..................... 125 00
$2,875 00
State uf Florida,
Hamilton Gounty.
Before me'personally came I. T. Carter who, being duly sworn, says that the above stated account is just and true as stated, and that the same is due and that no part thereof has'lteen paid. I. T. CARTER.
. Sworn and subscribed to before me this June 12th, A. D. 1889. D. B. JOHNSON,
Notary Public, State at Large. (Endorsed)
$572.78. Received on within claim $572.78. Oct. 3rd, 1890.”
Defendant objected to the introduction of the paper in evidence on the ground that it was nut evidence of any indebtedness by E. J. Baker to I. T. Carter," and that it was improper to allow the same with endorsements, especially the affidavit of 1. T. Carter, to be. read to the jury. The objection was overruled and the paper admitted in evidence, to which ruling the defendant excepted. We are of the opinion that the. court erred in permitting the account with the affidavit attached to be, introduced in evidence. The account was not evidence per se of any liability against the defendant administrator. Belote v. O’Brian’s Administrator, 20 Fla. 126. In connection with proof that the account had been stated between the parties it might have been admitted. Jacksonville M. P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, 16 South. Rep. 898. The affidavit attached to the account was entirely ex parte and inadmissible as evidence in any view and this it apparent from the paper itself. It appeared from the pleadings that defendant was sought to be held liable as administrator of E. J. Baker, deceased, on a claim in favor of I. T. Garter against Baker, transferred to plaintiff, and Carter made the affidavit to the account, and therein stated that the “above stated account is just and true as stated, and that the same is due and no part thereof has been paid.” If we were to concede that a party holding an account against the estate of a deceased per-
The following portion of the charge of the court to1 the jury was excepted to by defendant, viz: “You are instructed that part payment of an account presented for payment is not conclusive evidence that the whole account is a valid or just account, but it may be evidencie and is prima facie evidence that a part of the account thus paid was just and valid, and may, in the absence of evidence showing that the balance of the account was objected to go to show that the justice of the whole acount was acquiesced in by the debtor. If from the evidence, or-weight of the evidence, yon should find that the account of I. T. Carter against E. J. Baker, defendant’s intestate, sued on, was presented to the defendant for payment as administrator, he was bound to examine it and to have Mated his objections thereto- within a reasonable time, if he had any, and if he did not do so, -such account under ordinary circumstances will be treated presumptively by acquiescence a stated account. And a stated account establishes prima fa>ci& the correctness of the items of the account, and unless this presumption is overcome by proof of fraud, mistake or error, it becomes conclusive; still an account stated may be impeached for fraud, mistake or error. The party impeaching it, has the burden of proof thrown upon- him of such impeachment. You are also instructed that what is a reasonable time within which a party must object or become bound dependí» upon, the re
We think there was no error in the court’s refusal to give the charges requested by defendant below. The requ'st numbered two. (2) if it had been confined to the special count of the declaration should have been given, but ais drawn was, applicable to the entire declaration, and was, therefore, properly refused.
Exception was taken to the ruling of the court permitting John M. Carter to testify against the defendant administrator. The objection made by counsel is that John M. Carter was interested in the result of the suit, and therefore disqualified ais a witness under Section 1095, Revised Statutes. The ordinary bill of exceptions shows that objection was made to the witness on the ground stated, but there is no showing there that the witness had any interest in any way in the suit or the result thereof, and to the extent of the assignments of error on this point there are no sufficient facts to au
If we eliminate the testimony of the sworn account, held to have been improperly admitted in evidence, the verdict rendered by ilie jury can not be sustained on the showing before us. It can not support a verdict for plaintiff upon (lie special count under any view that may be taken. It shows affirmatively that the transaction out of which the claim of plaintiff’s assignor arose was-a contract between him and Baker whereby the former was to survey and locate certain l'ots of land and quiet the titles so that the latter could work them for turpentine andi saw-mill purposes, and that Carter never performed that contract, so far as quieting the titles was concerned, and neither Baker nor his administrator ever got possession of the lands or worked them-. The testimlo-ny shows affirmatively that Carter failed to substantially perform the contract proved in evidence, and therefore had no rightful claim thereunder against Baker or his administrator, which could be the basis of a verdict upon the •special count. The account 'stated declared upon and sought to be proved consisted of two items only, the larger for §2,750, the smaller for §125. But the larger item consisted of the alleged sum claimed to be due upon the contract sought to be proved under -the special count and it affirmatively appeared from the evidence without contradiction that nothing was due Carter by Baker under that contract. Though the evidence upon the question of account stated was sufficient to prove it, that account in so far ais the large item was concerned was nro'ven by uncontradicted evidence to be without foundiation, and the only other claim attempted to be proved was the small itemí of §125 which would not justify a
The judgment will be reversed, and it is so ordered.