George D. Huling, Appellant, Vs. The Florida Savings Bank and Real Estate Exchange, Appellee, 19 Fla. 695

Mr. Justice Westcott delivered the opinion of the court: The appellant says that judgment should have been arrested upon the ground that the amended declaration was not signed, and because the plaintiff failed to join issue upon the defendant’s pleas. The first plea was the general issue that defendant “ did not promise as alleged.” The second, that he did not contract with plaintiff as alleged. This is but a repetition of the first plea, a denial of the promise or contract. Webster vs. Tiernan, 4 How., Miss., 355 ; Rule 74, Circuit Court Rules.

The third plea is not responsive to any allegation in the declaration, and does not tender an issue. As to the omission of the signature of plaintiff or attorney to the amended declaration we find that an attorney’s name is signed to the praecipe and to the original declaration. After demurrer an amended declaration was filed giving the title of the cause, and in the introductory part the name of the plaintiff “ by its attorney,” but the name of the attorney is not signed at the foot. Without calling attention to this omission the defendant pleaded generally.

The name of the plaintiff’s attorney appearing of record and signed to the original declaration, the words “ by its attorney ” may be taken as referring to the attorney of record. The defendant having pleaded must be held to have waived irregularities of this character.

Was it necessary for the plaintiff to join issue by adding a similiter upon the pleas denying generally the contract or promise declared on; and the parties having gone to trial without the similiter, and tried the cause’upon its merits as though it was fully at issue, was it error to refuse a motion in arrest of judgment or to refuse a new trial ? “ It was once held that the want of a similiter was not aided by or amendable after verdict, but in a subsequent case, where a similar mistake was made, the court, after trial of the issue, refused to arrest the judgment, and the similiter was allowed to be inserted after verdict upon three grounds — first, it was an omission of the clerk ; secondly, it was implied in the ‘ &c.’ added to the last pleading; and thirdly, that by amending, the court only made that certain which the defendant understood to be so by his going down to trial.” 1 Chitty on Pl., 16 Am.

Ed., 626. In Wright vs. Horton, 1 Starkie, 400, the K. B. held that the court would after verdict direct a similiter to be entered, although the objection founded upon the want of it was taken at the trial. See also Reeder vs. Bloom, 2 Bing., 384; Stockdale vs. Chapman, 2 Ad. & E., 419. On writ of error in Siboni vs. Kirkman, 3 Mees. & Welsby, 46, the omission of a similiter was held to be amendable under the statute of amendments, even after final judgment,' and after a writ of error had been brought and such omission assigned for error.

The similiter is in strictness no part of the pleadings, since it neither affirms nor denies any fact in maintenance of the action or the defence, and merely expresses the acceptance of the issue tendered in referring the trial to the jury. Gould’s Pleading, 291. The Supreme Court of Pennsylvania in Shaw vs. Redmond, 11 S. & Rawle, 27, 33, says that where the defendant has had the full benefit of his own pleas on the trial the want of a traverse is cured by the verdict; and cites a note by Sergeant Williams to Bennet vs.

Holbeck, 2 Saund., 317, showing the progress of the courts in granting such amendments or overlooking such defects after verdict. The court refers to Cooper vs. Spencer, 1 Stra., 641, where it was decided that a verdict did not cure the want of a similiter ; but in Sayer vs. Pocock, Cowp., 407, the want of it was aided after verdict. And Lord Mansfield said, “ one is ashamed and grieved that such objections remain ; they have nothing to do with the justice of the case, but only serve to entangle without being of the least aid in preventing irregularity.” The same ruling was made in Whiting vs.

Cochran, 9 Mass., 533, and endorsed in McLellan vs. Crofton, 6 Greenleaf, Me., 307, 327; Brazzel et al. vs. Usher Breese, Ill., 35 ; Laber vs. Cooper, 7 Wallace, 565 ; Coan vs. Whitmore, 12 Johns., 353. In Iowa, Couch vs. Barton, Morris’ R., 354, the court holds that after verdict it is too late to raise an objection that pleas remain unreplied to, unless the defendant shows that he endeavored to obtain replications prior to the trial. This"court in Burk vs. Clark, 8 Fla., 9, 13, refused to reverse a judgment for want of a similiter to a plea of not guilty in trover.

On the other hand, counsel for appellant refer to Miller & Croom vs. Hoc, 1 Fla., 189, where the court finds by the record that there was no rejoinder to a replication to a plea of non-damnificatus, (the suit was on an attachment bond) that there was a demurrer to another plea not disposed of, and no joinder; and a verdict for a gross amount covering two causes of action in two several actions submitted by agreement at the same time when there should have been two verdicts. Eor these errors the judgment was reversed.

The court holds that there was no issue properly made up for submission to the jury, indeed that there was no issue either of fact or of law. The court does not cite authorities or present argument upon the precise question we are now considering. There was a replication to the plea of non-dam., but whether it was general or special the report does not show. The court in McKinnon vs. McCollum, 6 Fla., 376, held that it was error to submit an issue upon one plea to the jury while other pleas remain undisposed of, when it appears that they were not abandoned.

The action was trover, and defendant pleaded the general issue and two special pleas concluding with a verification, neither of which two were replied to. The court says : “ The first plea (the general issue) concluded to the country and might, with propriety, have been, submittted to the jury had the other two pleas been disposed of, but thus to submit it while these other pleas remained undisposed of was an error for which the cause should be sent back, as it clearly appears that they were not abandoned.” The ease of Benbow vs.

Marquis, 17 Fla., 441, it is strenuously insisted, establishes the doctrine that the want of a similiter in this case is fatal to this judgment. "We do not so understand it. That case was trover for logs. The pleas were, the general issue not guilty; 2, denial of property in plaintiffs; 3, denial of plaintiff’s right of possession; 4, that the logs were the property of the State, and that defendant was a timber agent and seized the logs as the property of the State. The second, third and fourth pleas concluded with a verification, and there was no replication. It was evident that these pleas were not abandoned.

It was held that there being no issue joined upon the second, third and fourth pleas, the judgment in favor of plaintiffs must be reversed, the testimony showing that the defendant was entitled to the benefit of these pleas. The case was treated as at issue upon the plea of not guilty without a similiter, as was that of McKinnon vs. McCollum, supra, which is quoted in the opinion. No case decided in this State can be found in which a judgment has been reversed because of the mere omission of a similiter to a plea or replication, except, perhaps, the case of Miller vs. Hoc, above referred to. The case of Earle vs.

Hall, 22 Pick., 102, is cited as containing a full discussion of this question and as establishing the rule that a judgment must be reversed if the plea of the general issue is not followed by a joinder by the plaintiff. We do not so understand that case. The court say the law does not appear to be fully settled in England. But, they say, “ whether such an omission may be amended or not, is immaterial in this case.

It is clear that no issue was joined by the plaintiff on the several pleas, and his counsel refused to join them.” The court below had by rule required the plaintiff to join issue upon the pleas, which he refused to do. Upon this the court say the conduct of the plaintiff’s counsel in refusing to take issue when required to do so by the court, authorized the court to enter a non-suit or discontinuance of the cause. ETo such ease is presented here.

In the light of all the authorities we have been able to examine, our conclusion is that a similiter is not a substantive pleading but is a mere expression of the acceptance of the issue tendered in referring the cause to a jury, and that after final judgment, the similiter not having been insisted upon by defendant, the omission is amendable even after error brought and cannot be well assigned for error, the cause having been fully tried upon its merits. Shaw vs. Redmond, 11 S. & R., 33 ; Couch vs. Barton, Morris, Iowa, 354; Libona vs. Kirkman, 3 M. & W., 46; Whiting vs.

Cochran, 9 Mass., 532, and other cases cited supra. The third plea is not responsive to any fact alleged in the declaration, is immaterial and frivolous. Whether true or false, it does not affect the rights of either party. When a plea of this character presents no point, either in bar or abatement of the suit, the plaintiff may treat it as a nullity and sign judgment as for want of a plea. State vs. Williams, 3 Stewart, 454; Stanley vs. Hill, 9 Porter, 368 ; Thigpen vs. Miss. C. R. R. Co., 32 Miss., (3 George,) 347. In the latter case the plea was not demurred to nor in any wise disposed of by the court.

Had the jury found a verdict ascertaining every fact to be true, the plaintiff should have had his judgment as by confession 'non-obstante veredicto, in so far as the rights of the parties depended on this plea. Steph. on Pl., 97, 129, and authorities cited ; Hyer vs. Vaughn, 18 Fla., 647, 654. The motion in arrest of judgment was properly refused. The motion ■ for a new trial was upon the grounds that the verdict is contrary to the evidence; contrary to the manifest weight of the evidence ; contrary to the charge of the court; erroneous charges by the court to the jury.

We have carefully read and considered the testimony. That on the part of the plaintiff proves its case, while that, of the defendants contradicts it in respect to the contract. Mr.

Greeley, President of the defendant corporation, testifies that Huling on or about April 16,1881, came to his bank claiming to own about $5,500 of coupons for which he-was entitled to scrip certificates, being one-half the amount of his coupons in the hands of the master, the certificates being convertible into lands, and Huling asked, “ what can you do with Yosescrip?” I said I could peddle it out at sixty-five cents, but could not get so much to sell it in large quantities. He then asked me what I could sell and account to him for. I said fifty-five cents. He said all right.

We then talked about having the certificates issued. They were drawing eight per cent, interest until issued, and tor that reason he did not want them issued sooner than necessary. Ho said he would instruct Judge Doggett to issue them as I wanted them ; that I might go ahead and sell and account to him for fifty-five cents. I was authorized to sell to the amount of fifty-five hundred dollars. I did not see or hear from Huling after that. I succeeded in effecting a sale on May 16,1881, to Philip Walter of about $5,500 worth of the scrip at sixty-five cents on the dollar, and Walter paid me for it.

I wrote Huling notifying him of the sale on the same day. Doggett did not issue the scrip as he said he had no order to do so. I then sent a telegram to Mr. Huling. Huling here produced the dispatch as follows: “ May 16,1881. To Geo. Huling — Wire Doggett to deliver certificates me; whole amount; then will you take fifty per cent, for balance; have written J. O. Greeley.” On the same day he wrote a letter to Huling enclosing a blank receipt to be signed for Judge Doggett and containing suggestions as to sale of balance of Huling’s scrip in Doggett’s hands.

No answer was received for four or five days, when Iiuling telegraphed that he had sold the certificates. On cross-examination Mr. Greeley says he only had one conversation with Iiuling other than the one referred to that he remembered. At the time when he authorized me to sell the certificates there was no one present but Mr. Warriner, the cashier. I am certain this was in April. It was about a month before I made the sale. T. Ii. Livingston testified in behalf of jfiaintifi: that he had been authorized by Mr. Huling to superintend the delivery of the certificates.

Produces telegrams from Huling, one dated Kansas City, May 21, to Livingston: “Sell Driggs coupons convertible into certificates at sixty cents and collect amount.” Also one dated May 27: “ Telegraph Diúggs I would like fifty-five for coupons not convertible into certificates. Sell Driggs others at sixty. G. D. Huling.” Witness says the certificates were sold at sixty cents. Mr. Huling told me that Mr. Greeley was not authorized to sell the certificates, that he had no agent. The sale to Driggs was completed with him. Huling testifies: I called at Mr. Greeley’s office on a matter foreign to the coupons.

I asked him if he was handling coupons, and what they were worth. He said he did not know. I asked him if he would give fifty-five cents for them. He said no, nor fifty cents. I then told him if any one came in inquiring about coupons if he would send him to me and I made a sale I would pay him a commission. I.asked him what his commission would be, and he said five per cent. This was in the evening, the latter part of February, 1881, in the presence of Mr. Weld and General Tillson. I did not authorize Mr. Greeley to sell the coupons. I had another interview with Mr.

Greeley, and asked him if any one had inquired about such instruments. He said no. I never authorized Mr. Greeley at any time, or at any price, to sell any property of min,e. Mr. Greeley telegraphed me that he had sold my certificates at fifty-five cents. This telegram had been mislaid ; was a day message on the 16th bf May. I have made diligent search for this telegram, and inquired at the office here, and telegraphed to the office at Kansas City to get a copy of this dispatch, hut was unable to get a copy. This telegram to me was: “ Have sold your certificates at fifty-five cents.” That was all I knew of.

The telegram which has been put in evidence as coming from Mr. Greeley to me was a night dispatch following the day message. Mr. "Weld went North about the first of March. I sold my certificates to Driggs ; received a telegram from him the same day, the 16th of May, that Mr. Greeley telegraphed me inquiring about coupons. I did not answer Mr. Greeley because I thought he did not desire an answer, as he was not authorized to sell. I left here May 3, 1881. Gross-Ex.— The second interview with Mr. Greeley took place about 26th or 27th March.

I had no interview with him in April, except that it might have been about the first or second. We were alone. I asked him if there had been any inquiry for such coupons. I think I telegraphed Driggs about the 17th or 18th of May. I sold at sixty cents. I did not answer Greeley’s telegram till I had telegraphed Driggs that he could have the certificates at sixty cents on the dollar. Gordon E.

Weld, in behalf of defendant, testified that he was present at an interview at Jacksonville at plaintiffs place of business between defendant and Mr..Greeley, at which mention was made of certain coupons, but I cannot say what coupons. Mr. Huling asked Mr. Greeley if he would buy some coupons at a certain price, and Mr. Greeley said he would not, and then Mr. Huling said to Greeley that he was in the banking business and might hear of some one who wanted them, and if he would send them to him to buy them he would pay “ them a commission.” I do not remember what the commission was.

"Was present at no other interviéw when such certificates were discussed. This was the last of February, 1881. Was introduced to Mr. Greeley and General Tillson at the time of the conversation mentioned. Some other witnesses testified as to matters referring to coupons and certificates and the sale to Walter, which may or may not have a bearing upon the case, but the importance of the-testimony is not very apparent. The Judge charged the jury, giving written instructions presented by counsel of both parties, and no exception was taken on either part.

The jury returned a verdict for plaintiff upon which, after motion in arrest and for a new trial was denied, judgment was entered. The verdict was not contrary to the evidence because the plaintiff’s evidence was sufficient to support it. Was it contrary to the weight of the evidence ? The jury thought not. They had the witnesses before them and understood the bearing of the testimony better than it is possible for us to understand it. Mr. Greeley’s testimony is direct and positive, and his acts subsequent to the alleged sale accord with his understanding of the agreement he testifies to.

He acted as though such a contract existed, and he was endeavoring to carry it out. He made a sale, received money upon it, and gave a receipt for the money paid on account of it, and forthwith telegraphed and wrote to Huling as though the agreement with Huling existed, requesting Huling to make delivery. He says the agreement was made with Huling in April.

On the other hand Huling as positively denies the agreement, says the conversation was in February, and states what the conversation was, and that no such conversation occurred at any other time, though he says he had other conversations with him at subsequent times, asking him whether any inquiry had been made for such certificates, &c. Mr. Weld corroborates Huling as to so much of the conversation as he heard or remembers that occurred in February. He does not state that he heard or remembers all that was said between them. Mr. Greeley states nothing as to seeing Mr. Weld, but says that when Mr.

Huling authorized him to sell the certificates no one was present except Mr. Warriner, the cashier, and is positive it was in April. Mr. Huling shows that he left Jacksonville early in May. He received the dispatch from Greeley informing him that Greeley had sold the certificates on the 16th of May, and did not at once answer the dispatch, but telegraphed Livingston on the 21st to sell to Driggs at sixty cents. The jury had all the facts from the mouths of the witnesses. There is no actual conflict, except as between the testimony of Mr. Greeley and Mr. Huling.

We do not discover that the verdict was against a strong preponderance of evidence “ leading to the conclusion that it was the result of prejudice or excitement, or other improper influence.” 14 Fla., 49. Whether we should have found the same verdict if we were jurors is not the question, but whether it is apparent that the jury were guided by some influence other than a proper consideration of the testimony. Upon questions of veracity and conflicting testimony they are peculiarly the proper tribunal to decide them, and it should be a strong case of wrong done by them to warrant our interference. 14 Fla., 73.

It is alleged further that the verdict was contrary to the charge of the court; that is, that the evidence was not sufficient under the charge of the court to sustain the verdict. The court charged at the request of defendant’s counsel, that “ if plaintiff recovers at all it must be upon the case set up in his declaration, and unless the jury find the facts sustain the case as set up in the declaration plaintiff cannot recover. In all civil cases the jury should be governed by the weight of testimony.” This was the spirit and essence of the whole charge.

We fail to discover that the verdict is contrary to the charge or to the law of the case. They have found that the contract was made and broken as alleged in the declaration. Counsel make no argument upon this point, except upon the character and weight of the evidence, which we have already considered. Of the alleged errors in giving the third and fourth paragraphs of the instructions asked for by plaintiff, it must be remarked that defendant’s counsel did not discover any error of law or any impropriety in the charge, and took no-exception to it at the time.

Having thus assented to it there is no ground for alleging error. The instructions given are signed and sealed by the Judge. The judgment is affirmed.