Citations
- 69 Fla. 52
Full opinion text
Ellis, J.
The Cotton States Belting and Supply Company brought suit at law in the Circuit Court for Taylor County against the Florida Railway Company.
The declaration declares upon two promissory notes alleged to have been made and executed by the defendant payable to the plaintiff, one note dated May 5th, 1913, payable ninety days after date, and one dated September 3d, 1913, payable sixty days after date. As to the first note the declaration alleges that “on the 5th day of May, 1913, the said Florida Railway Company being then and there indebted to the plaintiff, made and executed its certain promissory note of said elate;” and as to the second note, that “on the 3rd day of September, 1913, the defendant being then and there indebted to the plaintiff made and executed its promissory note of said date.”
The declaration also contained Common Counts for goods bargained and sold; for work done and materials furnished, and for account stated.
Copies of the notes were attached to the declaration, also a bill of particulars under the Common Courts.
The defendant by its attorney filed two pleas: To the first count it pleaded that the notes mentioned and described in the said first count of the declaration are not its notes, and to the Common Counts it interposed the plea of never was indebted as alleged.
The case was tried upon the issues joined, on the 7th day of October 1914, at a term of the Circuit Court for Taylor County. No evidence was submitted by the plaintiff under the Common Counts of the declaration. There was a verdict for the plaintiff.
The defendant moved the court for a new trial, upon the following grounds: First, the verdict is against the evidence and the weight of the evidence; second, there was no sufficient evidence that the notes sued upon were and are the notes of the defendant; third, the verdict is. against the law of the 'Case; fourth, there is no sufficient evidence to support the verdict, and fifth, the evidence in the case is- not sufficient to overcome the plea of non est factum.
The court granted the motion for a new trial, and the plaintiff took a writ of error.
At the trial, the plaintiff called as a witness Frank Drew, who testified that he was President of the Florida Railway Company; that he was president of that corporation on the 3rd day of September, 1913, and on the 5th day of May, 1913. Thereupon the two notes sued upon were handed to the witness, and he said: “This is my signature to both of them.” The notes were then offered in evidence and admitted over the objection -of the defendant. One of the notes is dated Live Oak, Fla., Sept. 3rd, 1913, is payable sixty days after date to the order of Cotton State Belting & Supply Co. at the Citizens Bank of Live Oak, Florida, bears interest at eight per cent per annum from date, provides for payment of reasonable attorneys fees if given after maturity to an attorney for collection, provides that the makers and endorsers of the note waived demand, notice and protest, and consents that the time of payment may be extended without notice, and is signed as follows: “Florida Railway Co. By Frank Drew, President.” The other note is dated Live Oak, Fla., May 5th, 1913, payable ninety days after date to the order Of Cotton States Belting and Supply Co., bears interest at seven per cent per annum from date, and contains the same provisions for attorneys fees, waiver o.f demand, .notice and protest and. extension of payment, as the note, first referred to, and is signed as follows: “Florida Railway Co., By Frank Drew, Pres.”
Lloyd Bishop Clark, called as a witness for the plaintiff, testified that he was engaged in railroad business, agency work for the Florida Railway Company, lives in Perry, Florida, has been in the service of the 'Company six years, he is local railway station agent, his duties were to receive and deliver freight, sell tickets and solicit freight and issue bills of lading; he had been in the service of the company two years in Perry, two years in Live Oak, and nearly two years at Mayo; that Frank Drew is President of the Florida Railway, is General Manager of the Railway at present, was President on Sept. 3, 1913, and May 5, 1913, and believed he was also General Manager, though witness was not sure Frank Drew was General Manager on May 5th, 1913; but was sure he was General Manager on Sept. 3, 1913. W. L. Weaver, a witness for the plaintiff, testified that he was Cashier of the First National Bank of Perry, Florida, and knows Frank Drew, the President of the Florida Railway Company. In answer to a question as to whether he had had occasion to handle notes executed by Frank Drew in the name and on behalf of the Florida Railway Company, the witness answered ‘“Yes Sir.” The question was propounded over the objection of the defendant, but the objection was overruled. The witness was asked: “Were these notes executed by Frank Drew in the name of and on behalf of the Florida Railway Company?” A. “Yes, Sir.” Q. “Have any of these notes ever been paid at your bank by the Florida Railway Compnay?” A. “Yes Sir. Some of these notes have been paid; I might add, however, that these notes were personal endorsements in addition to the, signature of Mr. Drew as President. They had the personal endorsement of Mr. Drew; this was during the past two or three years. These notes were paid by the Florida Railway. I don’t recall how many notes. Several there have been, one or two renewed and one or two paid. In -the last two or three years one or two of said notes have been paid by the Florida Railway.” The plaintiff called J. EL Parker as a witness who was