M. L. Broward, Appellant, vs. John B. Roche, Appellee, 21 Fla. 465

Mr. Justice Raney delivered the opinion of the court: I. The first point we consider in this case is the alleged retraxit.

Appellant’s counsel say “ the account sued on is, as required by the statute, appended to the declaration, as the cause of action on the third and fourth counts,” and “is made of many items of debit and credit, among the items of credit being the identical acceptance representing Clark’s store account.” “ To this account,” he further says, “thus appended to the plaintiff’s declaration as his cause of action claiming the balance due thereon, made up of debits and credits, the defendant” pleaded “ never indebted,” and “ during the trial, while the plaintiff, as a witness on his own behalf, was being examined to pro.ve this balance, the plaintiff, in open court, abandoned this count.” He . then contends that “ if the store account thus declared on embraced this acceptance,” such acceptance “ ceased to be a cause of action the moment the count embracing it was abandoned.” A copy of the acceptance, which is for $204.41, and dated May 24th, 1881, is-filed with the declaration, as is also a copy of the note for $130, dated March 5, 1880; and in the account under date of December 30, 1880, we find the following charge against Broward': “ Clark acceptance $204.41.” The account books of the plaintiff being admitted, he had testified to the entries of July 15th and 17th, 1880, they being the first charges appearing against Broward on the account filed, and then it appears in the testimony that “ the plaintiff here abandoned the store account and offered in evidence the two notes due and mentioned in the special counts in the declaration.” We think it is evident that the “ two notes ”’ are the note and acceptance described in .the “ special counts,” and considering the entire action taken by the plaintiff, as shown by the statement quoted from the testimony, it discloses as much of an intention to pursue any right growing'out of the note and acceptance transaction as it did to abandon pursuit of any part of the store account.

It seems impossible to give any other effect or purpose to his action. An abandonment of the common counts accompanied with an expressed retention of a pursuit of the special counts would leave the special' counts standing good for whatever they cover and show an intention to abandon only so much as is not covered by the special counts. We do not see any intention to abandon any part of the suit except such as covered only the store account, exclusive of the note and acceptance.

The pleadings and causes of action filed so far as necessary to recover on the note and acceptance transactions remained intact and sufficient. Taking this view of the case it is unnecessary to consider in this connection the effect of the alleged retraxit. We, however, will discuss it further in the third paragraph of this opinion. II.

The referee found that the note had seen paid by the defendant. “ This,” says he, in his finding, “ is easily ascertained by the fact that when the defendant was credited with the payment of $823.91, as shown by the bill of particulars filed with the plaintiff’s declaration, credited August 13th, 1880, the payment at this time exceeded all the indebtedness of the defendant to the plaintiff, including this note, and left a balance due the defendant in the hands of the plaintiff.” He finds that the acceptance has not been paid. “ This,” he says, “ is shown by the fact that 'no payment was made by the-defendant to plaintiff after accepting the draft.” Judgment was given for the amount of the draft, principal and interest.

The defendant moved for a new trial on the ground that the finding and judgment are unsupported by the testimony, and against the weight of evidence, and contrary to law. The plea was payment, and the burden was upon the defendant to sustain his plea. We have considered the testimony very carefully, and it is set forth fully in the statement of the ease.

Hot only is there direct conflict as to the application of the moneys received by Roche to the payment of the acceptance, but also as to the fact that Broward ever directed any such application and also as to the time covered by the Clarke account, as to conversations, and in fact as to almost every, if not every, material point involved in the issue as to such payment. "Whei’e the evidence is contradictory, making it the duty of the jury to decide upon the credibility of the witnesses, the-court will not set aside the verdict as agaiust the weight of evidence. P. & G. R. R. Co. vs. Nash, 12 Fla., 497.

TheGourt will not set aside the verdict of a jury upon questions, of fact where there is a conflict of evidence, unless it may be well assumed from the circumstances of the case that some improper influence has been brought to bear to effect such jury contrary to the right; Nickels & Gautier vs. Mooring, 16 Fla., 76 ; or unless the verdict is so clearly and manifestly against the weight of evidence as to suggest the presumption that it was produced by influences other than a proper consideration of t*he testimony ; John D. C. vs.

State ex rel., 16 Fla., 554; or unless it appears, that the jury were influenced by some improper motive. Mays vs. Hynote, 16 Fla., 673. See also 16 Fla., 676. A verdict will not be set aside as against the weight of evidence when such evidence is so contradictory as to make it the duty .of the jury to decide upon the credibility of the witnesses, although such evidence seems to preponderate against their finding, unless there is ground for belief that the jury acted through prejudice, passion, mistake or other cause which should not properly control them; (McMurray & Brittain vs.

Basnett, 18 Fla., 609;) or unless the preponderance of evidence is such that the verdict must have been produced by consideration other than a due respect to the evidence. Huling vs. Fla. Savings Bank, 19 Fla., 695. A verdict is not against evidence where there is legal evidence-to support it, though there be conflicting testimony upon material points. Id., 695. The same effect is to be given to the finding upon the facts by a referee, as to a verdict of a jury. McClenny vs. Hubbard, 20 Fla., 541; 15 Barb., 28 ; 16 Barb., 146 ; 35 Barb., 602.

In the light of the rules laid down above, we do not see how we can grant a new trial. There is testimony sufficient to support the finding as to the acceptance, and there is no such preponderation of testimony against this conclusion as to raise the belief that the referee acted under improper influences from prejudice, passion or other cause which should not properly control him. The question is not simply whether this court, sitting in his place, would, looking at the record before us, have found the same conclusion. He had the witnesses before him—a very material consideration.

The Supreme Court of Maine, in the case of Crocker et ux. vs. McGregor, decided in June, 1884, say: “We have carefully, examined the evidence reported, upon which the motion to set aside the verdict is based, and while we think the verdict might properly have been for the defendant, still there is sufficient in favor of the plaintiff, if the jury believe it, to authdrize the verdict for her.

We cannot say that the verdict is so clearly wrong as to require the court to set it aside.” The reasons given by the referee for his findings do not show that he did not consider the whole testimony, nor would an erroneous reason, not showing that the testimony was not considered, vitiate a finding which the testimony, applying the rules of law, laid down above, would sustain.

The referee does not find that the balance left in plaintiff’s hands after the payment of $823.91 by defendant, was not absorbed by the subsequent items in the store account, nor does he say that he relies upon the bill of particulars (store account,) alone as showing that no payment was made to the plaintiff after the acceptance of the draft by Broward. There is testimony, entirely outside of the store account, to such effect.

In considering this ease it is not to be forgotten that the plea to the acceptance is payment,-and that the admissions of such a plea are that the acceptance itself was a valid cause of action, and the sole avoidance relied on is payment. It will be remembered, too, that the plea to the-counts covering the entire open account and all its items as such, was never indebted. III. A retraxit “ is where a plaintiff cometh in person in court, where his action is brought, and saith he will not proceed in it, and this is a bar to that action forever.

It is so called because it is the emphatical word in the Latin entry.” Tomlin L. 'Diet., Title, Retraxit ; Abbott’s Law Dictionary, Retraxit; Lown vs. McMillan, 8 Penn., St., 163. It differs from a nolle prosique in that it is “ a bar to any future action for the same cause, whereas the nolle prosique is not unless made after judgment.” It is said to-be absolute in England.

Assuming that the course takeii by the plaintiff here would preclude any future action ■ to recover the store account, we do not understand from anything we have been shown or can find that the effect of such abandonment or retraxit precluded the plaintiff1 from showing that the moneys received by him had been applied to the account or otherwise, and not to the note air'd acceptance, and that the latter had not been paid. That the account had been paid may have been the very reason why it was abandoned.

The fact that a cause of action has been paid is-good reason why a party should forever disclaim a right to sue on it, but this does not estop him from asserting that it once existed and has been paid. ' IY. The only remaining point to be discussed is that as to costs. Rule 61 of the Common Law Circuit Court Rules provides that u no costs shall be allowed on taxation, to a plaintiff upon any counts or issues upon which he has not succeeded, and the costs of all issues found for the defendant shall be deducted from the plaintiff’s costs.” This rule applies to the taxation of costs.

An error in taxation of costs is not a proper ground for a new trial, nor is it among those urged before the referee. If there has been •any error in the taxation, we do not discover anything in the record showing it, even assuming that this is the proper way to reach the error. There is nothing to show the ■items of costs taxed. The judgment is affirmed. The appellant then filed a petition for a re-hearing, which is as follows: To the Honorable, the Supreme Court of Florida: Your petitioner, M. L. Broward, by his Attorneys, A. W.

Cockrell & Son, exhibits most respectfully his petition for a rehearing in said cause. In submitting this • petition, counsel for petitioner beg leave to quote the language borrowed by the Supreme Court of Pennsylvania in the case of “ Roberts vs. Beatty,” 2 Pinrose and Watts, 63 ; S. C. 21 Amer.

Decisions, 413. “ Counsel must present the case to the court, investigate the principles upon whichitdepends,produce authorities and trace out the analogies, or the court are not responsible for a correct decision.” If the decision in the opinion filed herein be not a correct decision; and if it be that we, by an omission of our duty, have incurred a just responsibility for the error, we bespeak the forbearance if not indulgence of the court, as we make atonement for that omission.

In the opinion delivered this court says: “ The referee does not find that the balance left in the plaintiff’s hands, after the payment of eight hundred'and twenty-three ninety-one one-hundredth dollars, was not absorbed by the subsequent items of the store account.” Conceding that the referee does not find that this balance was not absorbed by the subsequent items of the store account; and further conceding that the retraxit while destroying the store account, as an affirmative cause of action, did not extinguish the right of the plaintiff to show that certain moneys ascertained to be in his hands, due to the defendant, were absorbed by the purchase of goods of him by the defendant subsequently; it is submitted to the court, it was the duty of the referee to find, affirmatively, as the burden was on the • plaintiff affirmatively to show, that this balance in the hands of the plaintiff, thus judicially ascertained to be due from the plaintiff to defendant, was absorbed by purchases subsequently made of the plaintiff by the defendant.

Indeed, the propriety of the finding by the referee, that the defendant, Broward, owed the plaintiff, Roche, the exact amount of the principal and interest, represented by the acceptance, and no more, depends upon the fact and cannot be made out in the absence of the fact, that the purchases made of .the plaintiff by the defendant, subsequently to plaintiff’s receipt of the $823.91, represented in amount precisely this balance and no more.

In this view of the question, the direct conflict, real or supposed, in the evidence, “ as to the application of the moneys received by Roche, to the payment of the acceptance, and as to the fact that Broward ever directed any such application, and also as to the time covered by Clarke’s account ; and in fact as to almost every, if not every, material point involved in the issue as to such payment,” becomes wholly immaterial.

And in this light it is unnecessary to inquire whether the referee relied alone upon the bill of particulars “ as showing no payment was made to the plaintiff, after the acceptance of the draft by Broward nor is it material, if such testimony exists, that “ there is testimony outside of the store account,” that no such payment was made.

Conceding everything advanced by the court, in the opinion, in this behalf, and still the fact remains, as judicially ascertained and reported by the referee, when the $823.91 was received by Roche, “ the payment at this time exceeded all the indebtedness of the defendant (Broward) to the plaintiff (Roche), including the note, and left a balance due the defendant (Broward) in the hands of the plaintiff (Roche). What boots it, then, that no payment was made by Broward to Roche after the date of the acceptance ?

It is clear before the draft was given there was a balance in Roche’s hands, after deducting the note and everything else Roche claimed. We concede, if the acceptance stood alone, some presumption might arise that it represented the balance then due from Broward to Roche; and that in fixing as between the parties the amount of the acceptance, the balance theretofore in the hands of Roche was considered and covered.

But in this case, all the witnesses, Clarke, Broward and Roche, swear that this acceptance stood for and was intended to stand for precisely the amount of Clarke’s account with Broward, nothing more, nothing less. This acceptance then had no relation, nor could it have any relation, to the antecedent state of accounts between Broward and Roche.

Again, conceding, as is argued by the court, that the plea of payment interposed by Broward was in law an admission that the acceptance when made was a valid cause of action by Roche, in whose favor it was drawn, against Broward, the acceptor; yet, if the evidence shows, and the referee finds, there was a balance of money in the hands of Roche, in whose favor the acceptance was drawn, in favor of Broward, the acceptor; and the acceptance as to its amount and consideration was wholly separated from antecedent transactions between Roche and Broward, as is unquestionably true in this case, we submit that Roche cannot recover from Broward, in action of assumpsit, the amount of this acceptance and interest thereon, discharged of liability to account for money, affirmatively shown by the evidence, and by the report of the referee, to have been in his hands prior to said acceptance.

And we submit the burden was upon Roche, in this state of the case, in this state of the evidence and findings of the referee, to prove that this balance to the credit of Broward had been displaced by farther or other transactions between the parties. And the quantum or degree of proof thus put upon him was not lessened by the fact that he sought, if such were the fact, not a recovery from the defendant upon the store account, but to absorb by the use of the store account a credit otherwise due from him to the defendant.

Was there any such evidence of farther or other transactions between the parties, influencing the mind of the referee, as shown by the evidence he reported, or by his findings thereon ? Certainly not. The referee, after ascertaining and judicially declaring there was a balance in Roche’s hands due Broward on the 13th day of August, 1880, proceeds to say: “ I find that the draft of J. H. Clarke, drawn on M. L. Broward, the defendant, in favor of John B. Roche, plaintiff, and accepted by M. L.

Broward, dated May 24th, 1881, has not been paid by the defendant to the plaintiff, and that the defendant is still indebted to the plaintiff for said acceptance amounting to two hundred and four 41-100 dollars; this is shown by the fact that, no payments were made by the defendant to the plaintiff after accepting said draft. I find, therefore, that the defendant is indebted to the plaintiff in the sum of two hundred and four 41-100 dollars with eight per cent, interest from May 24th, 1881, to the present date.

We submit, in conclusion, that the plaintiff below offered no evidence displacing, or tending to displace, this sum or balance, as a credit adjudged to Broward, before said draft was accepted ; nor did the referee ascertain in his findings that this credit was displaced. He found that no payments were made by the defendant to the plaintiff' after the acceptance ; and upon this finding and no other adjudged the entire amount of the acceptance and interest was due from defendant to plaintiff.