The Florida Railroad Company, Appellant, vs. Gensler & Silberstein, Respondents, 14 Fla. 122

RANDALL, C. J., delivered the opinion of the court.

The appellant assigns as error that the Court refused to set aside the return of service of the process by which this suit was commenced, because there was no' legal service upon the defendant. ' We declined, however, upon the case being presented, to hear an argument on that subject, because it appeared in the record that after making the motion and its denial, by the Circuit Court, the defendant pleaded issnably to the declaration. ÍA general appearance and plea to the declaration has always been held by the Supreme Court in this State, to give the court jurisdiction of the party pleading, and thus to waive any defect of service or even want of service.

This we believe is the general rule throughout the country. • . It is alleged for error, further, that the, court erred, in permitting the bills of lading and dray reeepts to be given in evidence against the defendant. Erom the manner in which the record is made up, we cannot discover precisely under what circumstances the papers - were offered, or the objections made, or the grounds of the objection. Such papers may or may not be made evidence, according to the circumstances under which they are offered.

In this case we regard the dray receipts as very important evidence for the defendant, in connection with the other testimony. Another error assigned is, that the verdict of the jury was unsupported by the evidence, and contrary to the evidence. The testimony, as it appears in the reeoi d, seems to have satisfied the jury that the specific goods mentioned in the plaintiffs’ bill of particulars were received by the railroad company and were not delivered to the plaintiffs. The verdict, fixing the amount of the plaintiffs’ damages, corresponded with the testimony of one of the plaintiffs in that respect.

The verdict was for the sum of $729.60. The statement of the plaintiff was .that he lost one cáse of clothing costing $432.75; three cases of shoes costing $143.10 ; two chairs costing $10, and adding twenty-five per cent, to these, he fixes the amount at $729.60 as the value of the goods in Florida which were lost to him, and this the jury gave him. It will be noticed that Mr. Gensler testified that the memorandum shown to him on the witness stand was “ taken down as missing property at the time I received freight from the railroad company.

This memorandum was.made out when I discovered that some goods were missing. The list was made out in my store. I received some, goods on the 12th October, 1868. On the 14th more goods. I cannot recollect how many packages I received after that., I opened the goods on the 14th; when I received the goods I was short one case of clothing, three cases of shoes and two mahogany chairs. He did not know how many packages were sent by the steamer from New York and had lost., some of his bills of lading. The goods I packed were put in seven boxes and only six arrived.

There was one box short and the memoraudum of lost goods were in one box. There were thirteen cases.of shoes shipped and only ten arrived. Eight chairs were shipped and only six arrived.” :It is demonstrated as. clearly as it is practicable to do so, that the $729.60 named by the jury, was the $729.60 given by the witness. And it is shown by the testimony of Mr. Brown, the dray-man, and by his receipts, that thirteen cases of shoes, the precise number shipped by the plaintiffs, were delivered to Mr. Brown for the plaintiffs at the depot in Gainesville and that .Mr. Brown was authorized to receive them.

If the three boxes or eases of shoes were not delivered to the plaintiffs at their store, it is evident that the defendant should not be charged with the loss of them. Again: the plaintiff, Gensler, testified that he missed the goods on. the 14th October when goods were being delivered at his store, and then made out the memorandum of missing. goods..

That he received goods after that, but “ does not recollect how many packages after that.” This memorandum was doubtless the memorandum of goods upon which he estimated his loss, and it would seem that it was made out while receiving goods, and before all the goods received were delivered to hint..

This may not have been the aspect of the case before the-jury, but this is what we learn from this record.' If our view of the testimony is correct, the memorandum of goods lost was made out and the loss estimated before it could have been known what goods were lost, and the plaintiff says ho does not know how many packages were afterwards received by him. Mr. Brown’s receipts show that he received fon plaintiff’s after the 14th October, (when the goods were-missed by plaintiffs,) several boxes, barrels, cases, &c.,' of goods.

It may be that the list of goods mentioned in the bill of particulars is the list or memorandum mentioned by ME. G-ensler, but the case as presented does not show that the; goods mentioned in' the bill were in the box or case which was missed. The bill calls for certain specified articles, but it does not appear that the specified articles were in the lost box. Doubtless the jury were satisfied of the fact, and it may be that they inspected the memorandum from which the witness testified, but the record does not show it.

This apparent absence of a substantial link in the testimony, as to the identity of the goods, standing alone, might not warrant us in disturbing the verdict of the jury, because we ought to presume, probably, that the goods were identified to their satisfaction, otherwise than by their estimated value. But as to the boots and shoes we think a grave mistake was made, and upon the showing in the case stated in the record, the verdict was in this respect clearly excessive and against •the evidence, and must he set aside for that reason.

Thére is some confusion in the statements and letters of the agents of thé railroad company as to the number of packages received and forwarded by railroad, but there is noné as to the delivery by the defendant to the drayman of the plaintiffs of the thirteen cases of shoes, and it can scarcely be said that there is any conflict of testimony .upon that subject, for the plaintiff, Gensler, does not controvert the testimony of Brown or the correctness of his receipts for the goods. The judgment is reversed, and the Court below is directed Co set aside the verdict and grant a new trial.