text:
    Joseph JOHNSON v. CABOT CARBON COMPANY, Inc.
    No. 4105.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.

      Roland B. Reed, Ville Platte, Dubuisson & Dubuisson, Opelousas, for appellant.
    Fusilier & Vidriné, Ville Platte, for ap-pellee.
   LOTTINGER, Judge.

When this matter was previously before us, we reversed the Judgment of the District Court, sustained the defendant’s plea of prescription and dismissed plaintiff's suit. See La.App., 75 So.2d 389. Subsequently the plaintiff applied to the Supreme Court for and was granted a- writ of cer-tiorari or review. The Supreme Court reversed our holding on the question of prescription and remanded the case to us for consideration of the merits. See 227 La. 941, 81 So.2d 2.

All of the medical evidence as well as lay testimony has been carefully reviewed by us in our former opinion, wherein we concluded that plaintiff was totally disabled. See 75 So.2d at page 402.

Defendant still contends however that plaintiff has failed to prove his disability and complaint by a preponderance of the evidence, and that plaintiff is able to do the same type and kind of work he was doing when injured. To this we do not agree but concur with the findings of fact of the Lower Court. Plaintiff was classified as a utility man in the employment of defendant. As such, this classification has been described by defendant’s district superintendent as “well utility man covers about any type of work in the plant, in the yard, such as cleaning up, or working in the warehouse; working around the units, processing buildings, light carpenter work, helping painters, helping plumbers. Just as you might say, it is a floating crew that can help do any type of work within the plant.” It has been shown under this classification that plaintiff was required to do various and sundry types' of work around the plant the majority of which was heavy manual labor. It likewise has been shown in this record by a preponderance of testimony by medical as well as lay witnesses that the plaintiff is unable to perform any type of heavy work without pain and suffering. He could only be recommended to do' light work. It is well established in our jurisprudence that an employee whose injuries prevent him from performing his customary and usual duties without suffering pain, hardship and discomfort is totally disabled within the meaning of the Compensation Act. We are of the firm opinion that plaintiff falls within this category and are still of the opinion that the plaintiff is totally and permanently disabled and consequently the judgment appealed from is affirmed.

Judgment affirmed.

TATE, J., recused, M. D. MILLER, Jr., Judge ad hoc.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    Charles J. MOSELEY v. Frank B. KREY, Jr.
    No. 20020.
    Court of Appeal of Louisiana. Orleans.
    Jan. 16, 1956.

      Julian B. Humphrey, New Orleans, for defendant-appellant.
    Leonard Calcagno, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

The plaintiff, Charles J. Moseley, the owner and operator of a Buick automobile, instituted this suit against the defendant, Frank B. Krey, Jr., the owner and operator of a Chrysler automobile, endeavoring to recover the respective sums of $232.-78 for property damage and $50 for personal injuries to plaintiff’s two minor children, incurred on September 1, 1950, at 7:15 P.M. by virtue of a collision in the left traffic lane of N. Broad Street.

Defendant answered and admitted the occurrence of the accident, but denied responsibility therefor and, in the alternative, pleaded the contributory negligence of the plaintiff.

From a judgment in favor of the plaintiff in the sum of $232.78, defendant has prosecuted this appeal.

N. Broad Street is a wide thoroughfare; having two roadways separated by a neutral ground. The plaintiff, accompanied by his wife and two children, was operating his vehicle in the left lane of the lakeside roadway of N. Broad Street, moving uptown or in the general direction of Canal Street. Defendant’s- vehicle was being driven in the. same direction, but occupied the center lane of this roadway. In explaining his version of the accident, he related that it was his desire to move into the left lane of this roadway and when he was seventy-five to one hundred feet ahead of the plaintiff, he manifested a signal clearly indicative of this intention; that when he had just completed the execution of this maneuver plaintiff drove into the left bumper and fender of his vehicle.

Plaintiff, in contravention thereof, relates that prior to the accident he had stopped his vehicle in obedience to a traffic semaphore signal located in Esplanade Avenue and N. Broad Street and when he left this intersection he accelerated to a speed of about twenty-five miles per hour and it was at this moment that the defendant suddenly and without the manifestation of any warning whatsoever swerved from the center into the left traffic lane of the roadway causing the ends of the left and right bumpers of the respective vehicles to become entangled which, in turn, forced two or three wheels of plaintiff’s automobile to mount the neutral ground- of N. Broad Street, resulting in the damage which is the subject matter of this litigation.

After a careful examination of the record we are in full accord with the obvious conclusions of the trial judge that the proximate cause of the accident was the gross negligence of defendant in driving his vehicle from the center into the left traffic lane of N: Broad Street directly into the path of the plaintiff’s vehicle and that the plaintiff’s actions did not contribute to the accident.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: THOMAS, Justice. ROBERTS, Justice

text:
    Marion SPEIER, Appellant, v. MONNAH PARK BLOCK COMPANY, Inc., Douglas Lumber Company, Douglas Millwork, Inc., Air Control Products, Inc., Atlas Flooring, Inc., Frank W. Lloyd, and William B. Carr and Virginia E. Carr, Appellees.
    Supreme Court of Florida. Special Division B.
    Dec. 2, 1955.
    Rehearing Denied Jan. 20, 1956.
    Robert M. Deehl, Miami, for appellant.
    H. H. Eyles and Charles L. Vocelle, Miami, for appellees.
   THOMAS, Justice.

This controversy developed when the appellant filed an answer to a bill brought by materialmen to enforce payment of their claims. The appellant asked the court ■ to foreclose four mortgages she held on the same property. The suit culminated in a decree foreclosing the liens and declaring the mortgages void as violative of Section 687.07, Florida Statutes 1951, and F.S.A.

Although the four mortgages fall into two categories, the general pattern of the transactions was the same. Two identical mortgages, each securing $2,000, were executed by William B. Carr and his wife, to Marian Noble, 19 November 1951, and were purchased the same day by the appellant. Two mortgages, each securing a debt of $5,000, were executed 18 October 1951 by William B. Carr and his wife to Marian Noble. The following day one of these was sold to Frank R. MacNeill who later assigned it to D. G. Swartz, 29 November 1951, and one was assigned to James Falkos. Eventually, in July 1952, the appellant purchased both of these mortgages to protect, so she said, the two mortgages for $2,000 each. All four mortgages bore interest at the rate of 6% per annum, were payable in ninety days, and in each instance 10% of the face value was paid to one William Hoffman who, it appears, had been involved in many similar transactions when the appellant was interested in loaning .money.

William B. Carr was obtaining the loans in order to finance his construction program. Hoffman had been a mortgage broker for thirty years and had been engaged by the appellant for three years to make loans for her.

As we have said, the interest rate was 6% but it was provided in the mortgages that if they were not paid at maturity, the interest would then become 10% per annum. Under the general arrangement evidently Hoffman would charge the borrower 10% of the ' face value of the mortgages and would remit 3% of the face value to the appellant, in the guise of a discount, at the time she purchased the mortgages. In the case of the four mortgages with-which we are now dealing, Hoffman was also obligated to remit 3% of the face value to Leon Noble upon payment of the loans.

In other words, as soon as the mortgages, were executed to Marian Noble, who advanced no money whatever, they would be assigned to some person, that is, appellant or MacNeill or Falkos, who would then make the loans for the face amounts of the notes less 3% and make available for áistribution by Noble, and later by Hoffman, 97% of the amounts shown in the notes. Hoffman would-retain 7% and he and Noble disburse the remainder. To set the plan in motion Noble would have the mortgages drafted in Hoffman’s officé, then secure the signature of his wife to the assignments. And there is evidence that he was not too meticulous about the execution of the instruments. For instance, there was testimony showing that after the four mortgages were prepared; Noble left them at the home of the -Carrs; the Carrs signed the instruments and Carr took them to Noble’s office where Noble, a notary public, signed as'a witness, filled out the form of acknowledgment, and affixed his seal, although neither one of the Carrs appeared and acknowledged the execution. Marian Noble was but a figurehead and Leon Noble, who stood to profit by the transactions, was her husband and was an associate of Hoffman.

In, arriving at his conclusion that the earnings of the appellant were so high as to require cancellation of the mortgages the master used the following formula: he multiplied the amount of the commission, of 10%, by four, inasmuch as the loans were made for only ninety days, and observed that in the case of a $5,000.loan, the amount of the commission on -the basis of one year would be $2,000. _ Obviously if this formula is correct, the -charge...would have been forty per cent oi; the jface valup without taking into account the interest charged. - .

It has been seen 'that the $2,000 mortgages were purchased by the appellant for the face value less a discount of 3% thereof before maturity while the $5,000 mortgages were purchased after maturity for the face value and accrued interest. The $5,000 mortgages had been assigned '-to appellant, and the original mortgagee had received a discount of 3% of the face amounts.

We are aware of the provision in Section 687.04, Florida Statutes 1951, and F.S.A., that in order to hold a purchaser of negotiable paper before maturity responsible for usury, the usurious chárge must appear on the face of the instrument or the put-chaser must be shown to have had actuál notice, however, we do not feel obliged to explore the application of that inhibition to a loan made in violation of Section 687.07, supra, because it is clear to us that the' appellant was thoroughly familiar with the infirmities in the $2,000 mortgages not only because she received 30% of the charge that .had been made by Hoffman iii negotiating the loans but also because of her association in numerous similar matters. As for the $5,000 loáns she not only purchased them after maturity, but these transactions so, nearly resembled the others in which Hoffman represented her that it requires no imagination to decide that she was conversant with the whole plan of loaning her money and that this knowledge on her part should be construed as a willful effort to exact an unlawful return on her loans.

We think there is abundant testimony to support the master’s view, and the chancellor’s approval, that Hoffman was the agent of the appellant in the series of transactions and that .the appellant should be charged with knowledge of Hoffman’s manner of- operation; also, that in the devious way we have described, there was exacted from the borrower a sum of money which in proportion to the amount actually received by the borrower caused the loans to fall within the prohibition of Section 687.07, supra.

There is some conflict in the testimony about the relationship between Hoffman and Carr, Hoffman contending that he was authorized by Carr to deduct a commission for securing the loans for Carr, Carr denying that Hoffman was his representative. The master believed Carr and the chancellor sustained his conclusion. We see no occasion to interfere.

Adverting to the formula used by the master, we think he was correct in determining the income for the life of the loan, Ayvas v. Green, Fla., 57 So.2d 30, and we have no hesitancy in holding that the amount of the commission which was divided between the lender and the broker added to the interest gives a sum much in excess of “twenty-five per cent per annum upon the principal sum loaned,” Section 687.07, supra, and violated the provision that such may not he accomplished “by any contract, contrivance or device whatever, directly or indirectly, by, way of commissions, discount” and so on. Section 687.07, supra.

We think the chancellor’s decision is supported in principle by our opinion in Stoutamire v. North Florida Loan Ass’n, Inc., 152 Fla. 321, 11 So.2d 570, 571, where we repeated the pronouncement in Richter Jewelry Co. v. Schweinert, 125 Fla. 199, 169 So. 750: “'‘The agent cannot,' under our statute, be the employed agent of the lender and at the same time make a profit for himself by exacting a bonus or commission from the borrower, if the commission, together with the interest, exceeds the legal limit and amounts to usury. Our statute reaches the acts of the lender’s agent as well as those of the lender himself.’ ”

Nothing we have said is meant to reflect on the legitimate business of the mortgage broker. The vice of the present dealings was the attempt to make too much too quickly. Between the amount of the interest and the highest legal rate there was an ample margin for a legal charge by 'the broker, but when the broker charged as he did and represented the lender as he did, the combined burden placed on the borrower caused the deals to collide with the statute as we held in Stoutamire v. North Florida Loan Ass’n, supra.

Having reached the conclusion that the master and chancellor were correct in declaring .the loans usurious and forfeit, there is no need for us to discuss the merits of the decree with reference to the material-men’s liens.

The decree is—

Affirmed.

DREW, C. J., and THORNAL, J., concur.

ROBERTS, J., concurs specially.

ROBERTS, Justice

(concurring specially) .

I concur under the facts in this particular case because in my opinion they are sufficient to support a general scheme or plan by the appellant and the broker to regularly charge usurious interest under the guise of commissions and discounts. Were it an. isolated transaction between the broker and the lender, my view would be entirely different. In routine financial transactions, and in the absence of a scheme or plan to violate the statutes, I do not believe when a mortgage is sold to a third person for a discount that such discount should be considered as interest in testing the transaction as to its usurious qualities, and the same thing is true as to a reasonable brokerage fee. The buying and selling of commercial paper at variations above or below par form a vital part of American commerce under our free enterprise system and is, of course, legitimate and ethical when done in due course of business. It is because the evidence in this case supports a studied plan, scheme, and contrivance among the persons here involved — namely, the appellant, the broker, and the persons who acted a9 “straw men” in the mortgage transactions — to regularly avoid the usury statutes in numerous transactions that I have agreed to the opinion.

DREW, C. J., and THORNAL, J., concur.


author: PER CURIAM.

text:
    James Charles SAULS, Appellant, v. Marguerite B. SAULS, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
    Frank C; Decker, and Virgil L. Milbrath, Ocala, for appellant.
    A. P. Buie, Ocala, for appellee.
   PER CURIAM.

This cause came on, to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

DREW,. C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.


text:
    Edward M. PARRISH, Appellant, v. George GALLUP and Ophelia Gallup, his wife, Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1956.
    Rehearing Denied Jan. 31, 1956.
   PER CURIAM.

Affirmed.


author: DREW, Chief Justice.

text:
    Application of Carlos E. HARPER to Withdraw and Separate Himself From the Practice of Law and to Withdraw from the Florida Bar.
    Supreme Court of Florida. En Banc.
    Jan. 11, 1956.
   DREW, Chief Justice.

Carlos E. Harper is an attorney at law, duly admitted and authorized to practice law in the State of Florida and a member of The Florida Bar. With the consent of the Board of Governors of The Florida Bar, he has filed in this Court a petition in which he alleges that there are three charges of professional misconduct presently pending before the Board of Governors, which proceedings are in progress under the applicable provisions of the integration rule; that he does not desire to present further defenses against said charges but wishes to withdraw and separate himself from the practice of law henceforth. He prays this Court to enter an order striking his name from the rolls of The Florida Bar and withdrawing from him the privilege of practicing law without leave for reinstatement.

The Florida Bar has responded to the petition. It admits that it was filed with its consent and that such charges are pending against the petitioner. It is averred that the. Grievance Committee of the Eighth Judicial Circuit of Florida has exhaustively investigated the charges against petitioner and, based upon such investigation, has arrived at the, conclusion that there is reasonable and' probable cause shown that petitioner had been guilty of professional misconduct, and so reported to the Board of Governors of The Florida Bar’. It i's further averred that after-consideration, and pursuant to notice to the petitioner and hearings before it, it found that ground existed to believe the petitioner guilty of professional misconduct. It is then averred:

“In the private hearing upon the third of said charges, the petitioner stated that lie did not desire to present further defenses to any of the charges against him and requested leave to file petition to this Court to withdraw and separate himself from the practice of law and have his name stricken from the rolls of The Florida Bar, which leave was granted by the Board of Governors upon the condition. that said petition recite that there were charges pending against petitioner and that petitioner did not desire to present defenses thereto.

“The Board of Governors of The Florida Bar has given careful consideration to the facts and circumstances surrounding the charges against petitioner and has also carefully considered the request of petitioner for leave to file his petition herein, and has arrived at the conclusion that when serious .charges of professional misconduct are pending.-against an attorney, and the Board of Governors after consideration thereof and private hearing thereon, has determined that there is reasonable ground to believe the charges are true, that the Board of Governors may properly give leave to such accused attorney, at his instance and request, to file petition to this Court, therein waiving defenses to such charges and praying that the privilege of practicing law be withdrawn from him and his name stricken from the rolls of The Florida Bar, without leave for reinstatement, provided, of course, that the public interest does not render necessary or advisable a further investigation and public prosecution of the pending charges, and provided, further, that the nature of the charges are such that no restitution on the part of the petitioner is called for.

“After careful consideration of this matter, the Board of Governors of The Florida Bar has reached the conclusion that the public interest does not render necessary or advisable a further investigation and prosecution of the pending charges against petitioner, and recommends to this Court that the petition be granted.”

The disposition of this matter necessarily involves a consideration of the nature of proceedings of the kind here under consideration. This we shall first discuss.

Disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts. No private rights except those of the accused attorney are involved. A judgment in such proceedings does not affect the rights of any injured person to maintain a civil action against the attorney nor prevent the public authorities from the institution of criminal proceedings, if justified by the nature of the charges.

More than fifty years ago, this Court, in the case of State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So. 605, 606, approved the general principles relating to proceedings of this kind. In that case we said:

“At the common law the disbarment of an attorney was not considered a criminal proceeding. In the case of Ex parte Brounsall, 2 Cowp. 829, Lord Mansfield said: ‘It is not by way of punishment, but the court on such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.’ All the courts from that day to this have uniformly held that disbarment proceedings are not designed as a penalty or punishment for any malfeasance or dereliction of duty by an attorney, but are solely for the purpose of purging the roll of legal practitioners of an unworthy or disreputable member, and that in such proceedings no fine, imprisonment, or other punitive sentence can be imposed, but that the judgment therein can only be one simply revoking the formerly granted permit to practice as an attorney and counsellor, and striking the name of such attorney from the roll of attorneys. If a punishable crime has been committed by the attorney, that is of such nature as to be cause for disbarment, the penalty prescribed by law for such crime cannot be administered in a proceeding to disbar, but must be left to the usual proceeding by trial on an information or indictment; but the fact of the commission of such crime may be inquired into in a proceeding to disbar, and, if its commission is therein established against such attorney to the satisfaction of the judge, the sole result of such inquiry will be to strike his name from the roll of attorneys, not as any part of the penalty for such crime, but because the person who his committed it is unfit to be upon the roll of attorneys.” (Emphasis added.)

The views expressed by this Court on this subject in 1905 are summarized in the following observation appearing in 5 Am. Jur., Attorneys at Law, Sec. 249:

“The purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities belonging to the office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney.”

On the same subject, the Supreme Judicial Court of Massachusetts, in Re Keenan, 287 Mass. 577, 192 N.E. 65, 68, 96 A.L.R. 679, text 682, 683, said:

“The primary purpose of such a proceeding is the preservation of the purity of the courts and the protection of the public from attorneys who' disregard their oath of office and have been proved unworthy of trust. An attorney is not merely practicing a profession for personal gain; he is an officer of the court. By virtue of its inherent power to control the conduct of its affairs, to maintain its dignity and to enable itself to do justice the court has a summary jurisdiction to inquire into the conduct of its officers and to deal with an attorney found to have committed any evil practice contrary to justice and honesty. * * * A disbarment proceeding is an inquest or an inquiry into the conduct of the attorney. It is the pursuit of a right as well as the performance of a duty by or in behalf of the court to purge its officers of an unworthy member. It involves no private interest except that of the attorney. It is the invocation of a remedy to protect the courts and the public from the impositions arising from the presence of an unfit person among trusted officers. It does not afford redress for a private grievance. It is an action undertaken and carried forward solely for the public welfare.”

The question, however, of whether an attorney at law has the right to resign and have his name stricken from the roll of attorneys at his own instance is a subject which has received little attention of the courts. There was little American precedent on the subject when this Court had before it the case of In re Clifton, 1934, 115 Fla. 168, 155 So. 324. It cannot he doubted, however, that the right of an attorney to voluntarily resign was recognized by the English courts long before the American Revolution. Anon. 1 Chit. 557, n; Ex parte Gray, 9 D.P.C. 336; Ex parte Owen, 6 Ves. Jr. 11; Ex parte Foley, 8 Ves. Jr. 33.

In the Clifton case, supra, a petition was filed in this Court on January 13, 1934, in which the petitioner alleged that he was an attorney at law practicing in West Palm Beach, Florida having been duly admitted to the practice of law ,on November 14, 1927. He further alleged that at the time of the filing of the petition there were no proceedings pending against him under any of the statutes of the State of Florida for his disbarment or suspension and that he desired to “withdraw from the practice of the law and to resign as an attorney and surrender up for cancellation and revocation his certificate admitting him to practice in all and singular the courts of Florida.” Upon the filing of this petition in this Court, an order was issued to the Attorney General and the 'Chairman of the State Board of Law Examiners requiring them to show cause why the prayer of the petition should not be granted. Returns thereto were made by the Attorney General and by the Chairman of the State Board of Law Examiners and there appears in the records of said cause 'a statement of Circuit Judge C. E. Chillingworth to the effect that prior to the filing of the petition in this Court he had taken certain sworn testimony before him with reference to alleged misconduct of Clifton and had under consideration at the time the petition was filed the question of whether or not he should, pursuant to the statutes, direct the State’s Attorney to institute disbarment proceedings against the petitioner. The nature of the charges against the petitioner were set forth in the statement from the Circuit Judge.

The return of the State Board of Law Examiners strenuously resisted the granting of the petition of Clifton, not only on the ground that the petition itself was insufficient' because of its failure to allege that the petitioner had closed out his law practice and had no outstanding obligations or unfinished business as an attorney at law, but that the petition contained no recital or affidavit that he had no apprehension of any proceedings being brought for his disbarment or suspension as an attorney at law. Moreover, the response of the Attorney General and Chairman of the Board of Law Examiners attached as an exhibit an order of the Circuit Court of Palm Beach County, Florida directing the State’s Attorney to institute disbarment proceedings against, the said Clifton and a copy of the motion for disbarment filed pursuant to said order, all of which events took place subsequent to the date of the filing of the petition in this Court. In an opinion by the late Justice Ellis, filed June 4, 1934, supra [115 Fla. 168, 155 So. 326], we said:

“Long prior to 1789 the courts of England had adopted a rule which provided that the name of an attorney would not be stricken from the rolls at his own request without an affidavit that he did not apply therefor under an apprehension that charges would be made against him. * * *
“In the state of Oregon, under a statute which authorizes an attorney to resign by filing in the office of the clerk of the court in which he resides a written resignation as an attorney, the court would not accept the resignation and permit him to avail himself of the privilege which the statute expressly gave when proceedings for the attorney’s disbarment were pending against him. * * *
“The relation' of an attorney at law. to the state and his duties to the court as an officer charged with the duty of aiding in the administration of justice and upon whom rests a responsibility very great and serious in its nature is so well understood and recognized and observed by the bar of this state that we deem it unnecessary to discuss that relation arid show why a resignation by an attorney from those duties and obligations should not be permitted in cases where either some other person, as Lord Eldon said, had moved to strike his name from the roll, or where he apprehends that one may do so. So therefore before the court will strike an attorney’s name from the roll it will require a showing that no proceedings are pending against him for his disbarment, or an affidavit that he apprehends no such proceedings will be started. In that matter we will follow the English rule adopted in the beginning of the eighteenth century.” (Emphasis added.)

In a case decided in this Court in 1868 or 1869, State ex rel. Wolfe v. Kirke, 12 Fla. 278, the power of the courts over those who practiced before them was discussed at length. We quote from that case, text 283:

“The statute of Westminster first, 3 Ed., 1 Chap., 29, which was before there was any recognized class of practitioners as attorneys, provided ‘that if any sergeant, counter, or other, do any matter of deceit or collusion in the King’s Court, or consent to it, to deceive or entrap the court or one of the parties, he shall be no more heard in the court to plead for any one.’ Lord Coke says these practices ‘were against the common law, and therefore this act was made in affirmance of the common law.’ 2 Ins., 213, 214.”

The statute referred to in the above quotation was passed in the year 1275. The quotation in the opinion is incomplete in that it did not contain'the provision which appeared in the original statute that such “sergeant, (countor) or others, * * * shall be imprisoned for a year and a day.” The statute actually read as follows:

“If ■ any sergeant, (countor) or others, do any manner of deceit or collusion in the king’s court, or consent unto it, in deceit of the court, or to beguile the court, or the party, and thereof be attained, he shall be imprisoned for a year and a day, and from thenceforth shall not be heard to plead in that court for any man; * *

Weeks on Attorneys at Law, page 19. See also 6 C.J. 581, Note 58(b); 7 C.J.S., Attorney and Client, § 18.

That the statute, as quoted immediately above, is correct and that that portion with reference to imprisonment was actually considered by this Court in the Kirke case is sure because it is said in that case:

"The power to punish as well by imprisonment as by prohibiting parties from practicing, was a power incident to courts; existed before there was any recognized class of attorneys, and when in fact no roll of attorneys existed, for the first roll was introduced by 4 Hen. IV., Ch. 18.
“That courts have had and exercised a summary jurisdiction of this character over their attorneys, cases from the earliest period to the present time establish.” (Authorities cited.)

The authorities relied on by Justice Ellis in the Clifton case for the holding which we are discussing were Ex parte Owen, 6 Vesey, Jr. 11, and Ex parte Foley, 8 Vesey, Jr. 33. These cases are short and we quote them at length.

Ex parte Owen, 6 Ves. Jr. 11, 31 English Reprint, Chancery Book 11, p. 913:
“Mr. Owen moved, as of course, that a solicitor may be struck off the roll at his own request.
“Lord Chancellor [Eldon]. That will not do without an affidavit, that there is no other reason for it; for a solicitor apprehending, that an application will be made against him, may desire to be struck off the roll. Therefore the Courts of Law have required upon an application by an attorney to be struck off the roll, that they shall be satisfied, there is no other reason; and I shall accordingly require an affidavit, that he does not apply under an apprehension that somebody else will.
“Mr. Owen said, there was not the least ground for such an apprehension in this instance: this gentleman had not practised for two years; and made the application with a view to be called to the Bar.
“Lord Chancellor said, for that reason he should the more require the affidavit; for, when it is insisted on in such a case, no objection can be made in any other.”

Ex parte Foley, 8 Ves. Jr. 33, 32 English Reprint, Chancery Book 12, p. 262:

“Mr. Springer on behalf of a solicitor moved, that he may be struck off the Roll; stating the reason, that this gentleman was lately appointed a police magistrate; and suggesting, that in such a case there is no occasion for an affidavit, that there is no other reason for the application, as required by the Lord Chancellor in the late case Ex parte Owen (6 Ves. 11).
“The Master of the Rolls said, there must be an affidavit in every case.”

In view of the fact that when Ex parte Owen and Ex parte Foley were decided in 1801 and 1802 respectively the English Courts had the power in disciplinary proceedings concerning those who practice before them to imprison as well as disbar, reprimand or suspend we think the language of the Lord Chancellor and the Master of the Rolls in those cases and the results which they reached were based on the premise that by allowing such attorney to resign without the affidavit would deprive the court of its power to punish by imprisonment. We, therefore, conclude that inasmuch as the courts of this Country have never recognized the' right to imprison attorneys as well as to disbar them in 'summary' proceedings for disbarment, suspension or reprimand, the English rule has no place in our system, particularly if it is to be construed strictly. To put it another way, there was a valid reason for the rule set forth in Ex parte Owen and Ex parte Foley, supra.. The reason for the rule not being present under the American system of jurisprudence, the rule itself can find no support in logic or reason. So we hold that, under certain conditions, an attorney may resign in the absence of the affidavit discussed in the Clifton case, supra. ■

The judgment in the Clifton case does not do violence to these principles. While it was said, in that case that an attorney would not be allowed to resign in the absence of the affidavit referred to, it clearly appeared that not only the circuit judge'below but the Circuit Court commission of Palm Beach County had vigorously opposed the granting of such petition to resign. In that case the discretion of this Court could not be said to have been unwisely exercised.

This question has been considered by- a few courts, among which are those of Oregon, Washington, Kentucky and Indiana. We point out that in Washington-the court has considered the matter to be one involving the exercise o.f judicial discretion. In some instances, ’an attorney proposing to resign has been allowed to do so even after conviction upon criminal charges, Application of Lonergan, 23 Wash.2d 767, 162 P.2d 289, while in other cases, under other circumstances, the same court has rejected such application. In re Evers, 41 Wash.2d 942, 247 P.2d 890. In Oregon it is held that the resignation of an attorney without consent of the court is not effectual to preclude his disbarment when proceedings therefor were pending at the time of his resignation. Ex parte Thompson, 32 Or. 499, 52 P. 570, 40 L.R.A. 194, 195; In re King, 165 Or. 103, 105 P.2d 870. In Kentucky, the right of an attorney to resign is recognized but the granting of such request is there a matter to be determined by the court. In re May, Ky., 239 S.W.2d 95. And’in Indiana, an attorney at law is allowed to resign but such resignation will not operate to stay proceedings for the disbarment of such attorney, particularly where proceedings have been concluded by a commissioner appointed to hear evidence in’ disbarment proceedings and disbarment has been recommended. In re Lucas, 230 Ind. 254, 102 N.E.2d 909.

Disciplinary proceedings by- The Florida Bar are essentially a function of this Court. While the local committees and the Board of' Governors are not technically judicial tribunals, their findings and recommendations should be considered as those of an intermediate agency of this Court. They are in fact an arm of this Court dealing with a vital function of the Court and under its exclusive jurisdiction. See Velkov v. Superior Court in and for Los Angeles County, 40 Cal.2d 289, 253 P.2d 25, 35 A.L.R.2d 1348. While- the power to render the ultimate judgment in these cases is vested in this Court, the findings and recommendations of the constituted officers of The Florida Bar are entitled to receive due consideration and are of persuasive force. Copren v. State Bar, 64 Nev. 364, 183 P.2d 833, 173 A.L.R. 284.

The Same general principles laid- down here with reference to proceedings conducted by The Florida Bar are equally applicable to disbarment proceedings instituted and prosecuted under the applicable statutes of this State. Section 454.23 et seq., Florida Statutes .1953, F.S.A.. The power of circuit judges in disciplinary proceedings under these statutes are specifically reserved under Article XI of the integration rule, F.S.A., with the added requirement for filing two copies of the final judgment in this Court and furnishing one copy to the Executive- Director of The Florida Bar.

We, therefore, conclude that an attorney at law duly admitted to practice in this State may resign and surrender up and have cancelled his franchise to engage in the practice of the profession but that the acceptance or rejection of such resignation or the terms and conditions which will be imposed on an acceptance, are matters resting within the discretion of this Court to be exercised in accordance with the general principles herein discussed. Before accepting such a resignation, it should be made to appear in a proper and competent manner not only that the public interest will not be adversely affected by such acceptance but also that the acceptance thereof will not adversely affect the purity of the courts nor hinder the administration of justice. When these facts are made to appear in a satisfactory manner, after competent investigation by this Court or its officers, there is no reasonable basis on which the refusal to accept such a resignation could be justified.

The instant case is accompanied by a complete record consisting of evidence and exhibits resulting from an investigation over a long period of time. At the local level, those conducting the inquiries were members of the Bar having intimate knowledge of the individual dealt with. We are satisfied from the record presented that the unqualified resignation of Mr. Harper should be accepted.

It is, thereupon, the order of this Court that the name of Carlos E. Harper be stricken from the rolls of The Florida Bar and the privilege heretofore enjoyed by the said Carlos E. Harper of practicing law in the State of Florida is hereby terminated and withdrawn without leave for reinstate-, ment.

TERRELL, THOMAS, HOBSON, ROBERTS, THORNAL and O’CON-NELL, JJ., concur.


author: O’CONNELL, Justice.

text:
    The STATE of Florida, Appellant, v. FLORIDA DEVELOPMENT COMMISSION, An Agency of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 20, 1956.

      William D. Hopkins, Tallahassee, and Gunter Stephenson, Winter Haven, for appellant.
    J: Turner Butler, Jacksonville, and Ford L. Thompson,'Tallahassee, for appellee.
   O’CONNELL, Justice.

This is an appeal by the State Attorneys of the Second and Tenth Judicial Circuits from a final decree of the Circuit Court of the Second Judicial Circuit, in and for Leon County, wherein the issuance of certain Citrus Commission Revenue Bonds, proposed to be issued by the Florida Development Commission, was validated.

The Florida Legislature, in 1955, enacted Chapter 29788, Laws of Florida, Acts of 1955, creating the Florida Development Commission, the appellee, and conferring upon it all the powers and duties formerly vested in The Florida State Improvement Commission, which body was simultaneously abolished. Sec. 3(t), 11(b), Ch. 29788, supra.

Pursuant to resolution of the Florida Citrus Commission, the appellee undertook to issue revenue bonds in amount of $375,-000 for the purpose of constructing a building in Lakeland to be used as headquarters for the Citrus Commission, and duly instituted validation proceedings in connection therewith. From a decree of the Circuit Court for Leon County approving the issue, the State has prosecuted this appeal.

All issues raised with reference to the validity of the enabling statute under Sec. 16, Art. III, of the Florida Constitution, F.S.A.Const., and the general authority of the Development Commission to engage in and perform the commitments contemplated herein, must be disposed of in favor of appellee. Van Pelt v. Hilliard, 75 Fla. 792, 78 So.2d 693, L.R.A.1918E, 639; State v. Florida State Improvement Commission, 158 Fla. 743, 30 So.2d 97, 99.

The remaining point urged by appellant is that the obligations in question, payable from rentals to be received from the Citrus Commission as tenant of the proposed building, come within the prohibition of Section 6, Art. IX of the Constitution, so as to require approval of freeholders. The ruling of the court below in this respect was that “The Florida Development Commission has authority to pledge rentals received for the use of the proposed building, if, as and when collected, to the payment of the revenue bonds herein validated (e-s.) that accordingly the provision was properly made therein that the obligation is “payable from rentals accruing under a Lease-Purchase Agreement between the Florida Citrus Commission and the Florida Development Commission”, and is “secured only by such revenues;” and thal under those provisions “the purchasers and holders of the revenue bonds must look solely and exclusively to the rentals produced by the building for the payment of * * * the revenue bonds. They may not look to any legal or moral obligation of the State of Florida or any department * * * to rent or pay rent upon the building * *

Upon a consideration of all the terms and provisions of the bonds sought to be validated and the lease-purchase agreement referred to, the conclusions of the court below appear to be fully warranted and sustained by law. State ex rel. Watson v. Caldwell, 156 Fla. 618, 23 So.2d 855. And under the instruments as thus construed, it appears that the source of the funds to meet the rentals has no relation to the obligation of the bonds proposed to be validated. Cf. State v. Volusia County School Bd., Fla., 60 So.2d 761; State v. Florida State Imp. Comm., 158 Fla. 743, 30 So.2d 97. The final decree appealed from is therefore affirmed.

DREW, C. J., TERRELL, THOMAS, ROBERTS and THORNAL, JJ., and CRAWFORD, Associate Justice, concur.


author: SEBRING, Justice. FLOYD, Associate Justice. THORNAL, Justice

text:
    Clyde Albert ROWE, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    May 20, 1955.
    On Rehearing en Banc, Jan. 18, 1956.
    Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for appellant.
    Richard W. Ervin, Atty. Gen., and George E. Owen, Asst. Atty. Gen., for ap-pellee.
   SEBRING, Justice.

The appeal is from a judgment and sentence for a violation of the lottery laws.

The appellant, who was the defendant below, was charged in a four-count information with violating the lottery laws of the state. The first and second counts charged, in effect, that the appellant was unlawfully interested in and connected with a lottery by reason of the fact that he had purchased, and held in his possession, a gambling stamp from the federal government. The third count charged that the appellant “did unlawfully set up, promote and conduct a certain lottery and lotteries for money.” The fourth count charged that the appellant “did unlawfully aid and assist in the setting up, promoting and conducting of a certain lottery and lotteries for money.”

At the trial of the cause the jury found the defendant guilty on the first and third counts of the information. The trial court adjudged the defendant to be guilty on both counts but sentenced him only on the third count, to one year at hard labor.

On this appeal the appellant contends that count one of the information did not charge a criminal offense; and with this contention we agree. Aside from the fact that the act charged in count one of the information was committed prior to the effective date of the Florida Wagering Stamp Act, Chapter 28057, Laws of Florida 1953, F.S.A. § 849.051, and therefore could not have been in violation of its terms, Rodriguez v. Culbreath, Fla., 66 So.2d 58, it is held, in Jefferson v. Sweat, Fla., 76 So.2d 494, with reference to the act, that inasmuch as sections 1 and 3 thereof, when construed together, “attempt to make the mere possession of the [federal gambling] stamp primá facie evidence of the violation of the gambling laws and sufficient evidence to convict without any proof whatsoever that any gambling. law has been violated, [the act] is unconstitutional, null and void.” It follows from this that the judgment, so far as it is based on the first count of the information, was erroneously entered and must be set aside.

We have considered all assignments of error directed to the judgment and sentence on the third count of the information and are of the opinion that the appellant has failed to make reversible error appear.

Accordingly, the judgment appealed from should be reversed as to the first count of the information and the judgment and sentence as to the third count should be affirmed.

It is so ordered.

DREW, C. J., TERRELL, J., and FLOYD, Associate Justice, concur.

On Rehearing Granted

FLOYD, Associate Justice.

We are of the opinion that we overlooked a prime point in this Appeal on original consideration. With that portion of the original Opinion of Mr. Justice SEBRING, referring to the first count we still concur. Rehearing was granted on the sole question of whether the State had carried the burden of proving the corpus delicti under the third count of the Information.

The third count charged the defendant did unlawfully set up, promote and conduct a lottery or lotteries for money in Orange County, Florida, on the 30th day of October, 1951, and between that date and the date of filing the Information (October 29, 1953). This count was framed to charge a violation of Section 849.09(1) (a), F.S.A.

The defendant objected to the introduction of his alleged confession on the principal ground that the State had not established the corpus delicti so as to render the alleged confession admissible. The trial court overruled this objection, and the alleged confession was admitted in evidence.

An examination of the evidence upon which the State relied to establish the corpus delicti reflects the following.

The State’s first witness was a “wagering tax specialist” employed in the office of the Director of Internal Revenue. He testified in substance that he had mailed a wagering tax form to a person by the same name as the defendant, and had subsequently processed the executed form and saw to it that the tax paid was in conformity with the Federal laws after a stamp had been issued to defendant. There were objections made to the admissibility of his testimony in view of the fact that he could not testify that the defendant was the same person who had executed the forms, but this is not material here. We will assume, for the purposes of this Opinion, that it was the same person. Sufficeth to say, the defendant complied with the Federal Wagering Stamp Tax Act, Internal Revenue Code, Section 3285 et seq., 26 U.S.C.A.

The other State witnesses testified about the defendant’s handwriting to identify him with that appearing on the application form and checks payable to the Federal Government pursuant to the Revenue Code, supra. This, too, is not material to this Opinion in view of the above assumption.

A Deputy Sheriff then testified that he was familiar with Cuba and Bolita lotteries and described the method by which one played them, the odds they paid and that they were played for money. He was not asked, nor did he testify, whether there were violations of the lottery laws in Orange County during the pertinent period mentioned in the Information. This, then, brings us to the only point to decide in this Appeal—whether the corpus delicti was established sufficiently on which to predicate the introduction of the alleged confession. We are constrained to answer this question in the negative.

This State is committed to the doctrine that the corpus delicti may be established by circumstantial evidence as well as by direct evidence. Nichels v. State, 90 Fla. 659, 106 So. 479. Also, that it need not be established beyond and to the exclusion of a reasonable doubt, but only prima facie. But there must be sufficient evidence to establish it directly, or at least from which a reasonable inference may be drawn that the violation had occurred.

Section 3285 et seq., 26 U.S.CA. levies a tax on each person who is engaged in receiving wagers. In Florida this applies to bookmaking and lotteries for profit. The defendant is specifically charged with a violation concerning a lottery. Nothing in the testimony of the predicating witnesses points to a violation of the lottery section under which the defendant was, charged, but the most that can be said or inferred from the testimony is that the defendant must have been engaged in some form of wagering in view of the fact that the tax was paid. To establish a prima facie showing sufficient for the corpus de-licti, it would be unreasonable to attempt to show that some form of crime was committed and then attempt to infer that since some form of crime took place, the specific crime charged was also committed.

“It is well established that the basis of presumption must be a fact and that one presumption cannot be the basis of another presumption. * * * The fact that a crime has been committed, or corpus delicti, cannot be established by a presumption.” Jefferson v. Sweat, Fla., 76 So.2d 494, text, page 499.

Continuing in the Jefferson v. Sweat case, supra, this Court said:

“Even before a confession or admission of guilt can be introduced in evidence there must be some proof that the crime charged has been committed.” (Emphasis supplied.)

In this case, the crime charged was a violation of the lottery laws of Florida. From the evidence introduced prior to the-alleged confession, there could just as easily be inferred a violation of the bookmaking laws. The payment of the tax by the defendant does not establish, even prima facie, the operation of a lottery. This, coupled with the absence of any direct testimony that there had even been lottery operations in Orange County, makes the State’s case fall short of establishing the corpus delicti, a prerequisite to the admission of the alleged confession of the defendant.

We, therefore, reverse and remand this' cause for a new trial on the third count of the Information only.

DREW, C. J., and TERRELL, THOMAS and HOBSON, JJ., concur.

SEBRING and THORNAL, JJ., adhere to original opinion.

THORNAL, Justice

(adhering to original opinion).

I adhere to original opinion of SE-BRING, J. “Wagering” could be bolita or bookmaking but it must be one or the other. I think this was sufficient proof of. corpus delicti to admit confession.


author: HOBSON, Justice.

text:
    John E. MILLICAN, W. T. Spalding, Jr., and Mary Louise Spalding, sued “as and Constituting the Board of Supervisors of South Hastings Drainage District”, the said John E. Millican being sued also as “Chairman of said District”, and Emily Millican being sued as “Secretary and Treasurer of said District”, Appellants, v. The STATE of Florida, ex rel. Ed C. WRIGHT, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 18, 1956.
    Walter Warren, Leesburg, and Hull, Landis, Graham & French, De Land, for appellants.
    Joseph C. Young, Clearwater, and Raymond & Wilson, Daytona Beach, for ap-pellee.
   HOBSON, Justice.

This appeal grows out of a proceeding in mandamus. Appellants, respondents below, complain that the circuit court erred in ordering the issuance of a peremptory writ commanding them to levy taxes to pay a judgment previously obtained by the relator.

The alternative writ of mandamus, which was issued on February 26, 1953, alleged that the South Hastings Drainage District was duly organized pursuant to Chapter 298, Florida Statutes, F.S.A., and that the respondents were its duly qualified Board of Supervisors; that certain bonds were issued by said District and that the relator was the holder of such bonds and coupons, which were specifically described; that an action at law was instituted against the District upon the obligations held by relator, resulting in a final judgment in favor of relator entered by the circuit court on February 6, 1953 [affirmed by this court, South Hastings Drainage Dist. v. Wright, 72 So.2d 826]; that the District was in default in principal and interest on its outstanding bonds; and that it was the duty of the Board of Supervisors to include in the annual tax levy a tax for the purpose of paying such bonds and coupons. The alternative writ commanded respondents to take official action to levy taxes upon all the property within the District in an amount sufficient to pay the relator’s judgment.

The return to the alternative writ alleged that the District was created by a decree of the circuit court dated February 6, 1918, and was authorized to exist and continue for a period of 35 years from that date; that the decree had been a matter of public record since it was originally recorded on February 7, 1918; and that the relator and his predecessors in title acquired the bonds and coupons with notice of the provisions of the aforesaid decree and thus with notice that the legal existence of the District would terminate on February 6, 1953. It was further alleged that the relator had delayed the bringing of this proceeding until after the legal existence of South Hastings Drainage District had terminated. Relator moved to quash the return and for peremptory writ of mandamus notwithstanding the return. The circuit court granted these motions, with certain qualifications not relevant here, whereupon a peremptory writ of mandamus was entered, directed to the appellants in their alleged capacities as officers of the South Hastings Drainage District.

There is no issue of limitations or laches here, for such points were foreclosed by the judgment we recently affirmed in this litigation. The mandamus proceedings were timely instituted after judgment was entered.

Appellant contends that mandamus was not the proper remedy. Not only is mandamus specifically made available for the enforcement of rights of the bondholders by F.S. Sec. 298.56, F.S.A., included in the chapter under which the bonds involved in this action were issued, but in Morgan v. State ex rel. Garrett, 126 Fla. 534, 171 So. 310, a drainage district case, we said:

“Mandamus is the proper remedy to compel the exercise of such power of special taxation as it exists, to the extent that it may be lawfully exercised, for the purpose of paying judgments against the district.”

We should further point out that ordinarily, although problems of substantive law may arise on the issue of whether or not an act should be performed, it is by the “nature of the thing to be done” that the propriety of issuing mandamus is to be determined. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; State ex rel. Fleming v. Crawford, 28 Fla. 441, 10 So. 118, 14 L.R.A. 253; State v. Gray, Fla., 74 So.2d 114, 121. The act sought to be commanded in the: instant case, i. e., levying the tax, is purely ministerial, and mandamus will lie.

The only real question presented is whether, as a substantive matter, the “power of special taxation * * * exists” and “may be lawfully exercised”, Morgan v. State ex rel. Garrett, supra, under the facts of this case, wherein the authority under which the district was created has expired and the supervisors are no longer de jure officers.

F.S. Sec. 298.56, supra, reads as follows:

“All bonds issued by any board of supervisors under the provisions of this chapter shall be secured by a lien on all lands and other property benefited in the district, and the board of supervisors shall see to it that a tax is levied annually and collected under the provisions of this chapter, so■ long as it may be necessary to pay any bond issued or obligation - contracted under its authority; and the making of said assessment and collection maybe enforced by mandamus.” (Emphasis supplied.)

The italicized portion of this statute indicates an unmistakable legislative intention to continue the taxing power until: lawfully contracted obligations are discharged:, and by this expressed intention we are bound. It remains only to examine the- medium through which the taxing power is to be exercised.

We have held that officers of a drainage district created by a defective decree possess de facto status which cannot successfully be challenged by a writ in quo-warranto, State by Watson v. Covington, 148 Fla. 42, 3 So.2d 521, nor can the organization of the district be attacked collaterally, Baldwin Drainage Dist. v. MacClenny Turpentine Co., 154 Fla. 525, 18 So.2d 792. One important basis of these holdings was- that contractual and other rights had been “ ‘acquired and not fully discharged’ ”, 3 So.2d 521; 18 So.2d at page 795, while the defectively organized district was in operation, and the same rationale applies here. In the instant case rights were acquired while the district and its officers enjoyed de jure status. To “discharge” these rights it is necessary only to extend the authority of the officers for a reasonable time after their original authority has expired. This must be done, absent a showing of conduct on the part of the creditor which would require a forfeiture of his rights, and there is no such showing in this case.

The exact question presented here has recently been decided in Missouri in Diekroeger v. Jones, 235 Mo.App. 1117, 151 S.W.2d 691, 695, where a drainage district relied upon the same defenses put forth by appellants herein. The court stated:

“We adhere to the doctrine * * * that certain residuary powers remain unimpaired in the supervisors when the charter expired and that the court can compel them to perform the duties •laid upon them by statute, even though the charter has expired.”

This pronouncement is entirely consistent with our view of the instant case and with our decisions in the analogous cases which we have cited above.

Appellants rely upon Barkley v. Levee Commissioners, 1876, 93 U.S. 258, 23 L.Ed. 893. In that case, mandamus was brought to enforce a judgment which, had been rendered against the board more than ten years after the district had expired. Provision had been made by statute for the continuation of authority in the board to assess taxes to meet outstanding indebtedness. The Supreme Court held that the judgment debt -sought to be enforced did not qualify under the statute. A judgment obtained so long after the district had ceased to exist could not be considered an “outstanding” obligation of the district. We think the Barkley case distinguishable, because of statutory considerations there involved and because of the long and unexplained passage of time between the expiration of the district and the obtaining of the judgment sought to be enforced.

Affirmed.

DREW, C. J., TERRELL, J., and STANLY, Associate Justice, concur.


text:
    Fred B. HARTNETT, as Mayor and Commissioner of the City of Coral Gables, Florida, et al., Appellants, v. STATE of Florida ex rel. J. B. STEINER and F. J. Neff, Appellees.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
    Edward L. Semple, Miami, for appellants.
    Ferrell & Young, Miami, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.


text:
    Frances F. MINER, Appellant, v. Floyd F. MINER, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
    Rayman & Duhig, Miami, for appellant.
    Rinehart & Gibbs, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.


text:
    Gerhardus BULLEMA, Appellant, v. Howard LOSEY, Esther M. Losey, et al., Appellees.
    Supreme Court of Florida. Division A.
    Jan. 18, 1956.
    Joseph A. Wanick, Miami Beach, for appellant.
    L. J. Cushman, Miami Beach, for appel-lees.
   HOBSON, Justice.

The Village of El Portal, a municipal corporation in Dade County, Florida, enacted a comprehensive zoning ordinance (Ordinance No. 8) in 1938. Section 5 of this ordinance protected non-conforming uses “existing at the time of the passage of this ordinance or any amendment thereto * * In 1953, the Village adopted Ordinance No. 63 which amended Ordinance No. 8 by zoning some twenty-one acres of land, owned by plaintiff-appellees, for hotel, apartment, bungalow court, and motel uses. Ordinance No. 63 contained the usual clause repealing all ordinances in conflict therewith.

The plaintiff property owners sued the Village and others. Gerhardus Bellema, who owns residential property within the Village, intervened as a defendant, and he is the sole appellant here.

The complaint alleged in substance that certain parts of the land owned by the plaintiffs had, at the time the lands were incorporated into the Village, been devoted to certain business uses (other than those specified in Ordinance No. 63), that the plaintiffs’ lands were wholly unsuited for residential purposes, and that the Village had passed Ordinance No. 63 wherein the Village attempted to restrict the use of plaintiffs’ lands to the construction and erection of residential buildings, regardless of the prior non-conforming uses. Plaintiffs sought a declaratory decree in effect avoiding Ordinance No. 63 and holding it ineffective as to plaintiffs’ property. The relief sought was granted, after hearing, in the final decree appealed from.

As appellant points out, the plaintiffs did not allege, nor did they prove, the existence of any bona fide doubt as to their rights. The Village alleged in its answer that “no contention is made that non-conforming uses existing at the time of the enactment of Ordinance No. 63 may not lawfully continue as such”. Moreover, it is difficult to see how a bona fide doubt could be founded upon a conflict between the two ordinances involved, since Section 5 of Ordinance No. g protects non-conforming uses “existing at the time of * * * any amendment hereto”. Inasmuch as Ordinance No. 63 amends Ordinance No. 8, and repeals only ordinances “in conflict” with itself, nonconforming uses existing at the time of the later ordinance are plainly protected. There was thus no jurisdictional basis for this action founded upon our declaratory judgment statute, and the proceedings must fall. See Bryant v. Gray, Fla., 70 So.2d 581; Caldwell v. North, 157 Fla. 52, 24 So.2d 806; Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808. Cf. Modernage Furniture Corporation v. Miami Rug Company, Fla., 84 So.2d 916.

It follows that the final decree appealed from must be, and it is hereby, reversed with directions to dismiss the cause. It is so ordered.

DREW, C. J., and TERRELL and THORNAL, JJ., concur.


text:
    Macon TRIBUE, Petitioner, v. STATE of Florida, Respondent.
    Supreme Court of Florida. Special Division A.
    Jan. 18, 1956.
    Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for petitioner.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for certiorari is hereby granted, the challenged judgment is quashed and petitioner is ordered discharged upon authority of Brown v. State, Fla., 62 So.2d 348; Kraemer v. State, Fla., 60 So.2d 615; Collins v. State, Fla., 65 So.2d 61, and Byrd v. State, Fla., 80 So.2d 694.

It is so ordered.

DREW, C. J., and TERRELL, HOB-SON and O’CONNELL, JJ., concur.


author: TERRELL, Justice.

text:
    Christine R. ROBERTS, personally and as Administratrix of the Estate of F. E. Roberts, deceased; Ronnie Roberts, a minor, and Martha K. Roberts, a minor, Appellants, v. Wendell ROBERTS, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 20, 1956.
    Rehearing Denied March 27, 1956.

      Warren, Klein & Moore, 'Miami Beach,' for appellant.
    Maibry, Reaves, Garitón, Fields & Ward, Tampa, for appellee.
   TERRELL, Justice.

This was a suit in équity by Wendell Roberts against Christine Roberts, personally and as administratrix of the estate of Francis E. Roberts, deceased, Ronnie Roberts and Martha K. (Roberts, minors and the adopted children of Christine Roberts and the deceased. The amended complaint alleged that Francis E. 'Roberts -died December 8, 1953, possessed of certain property known as Roberts. Ranch'; 'that he held title to an undivided one-half interest in certain other property, including an undivided seven-eighths interest in lands, building and equipment known as Sanitary Meat Company., It was further ah leged that while he held the legal title, decedent was in fact a trustee for the use ■and benefit of himself and the plaintiff who owned equal shares. The complaint also alleged that on December 1, 1947, the parents of Francis and Wendell Roberts by deed and bill of sale' conveyed an undivided one-sixth interest in the lands and cattle referred to as Roberts Ranch to each of their three children. This conveyance was alleged to be a conveyance by the parents as an advancement to the children without consideration.

Later by deed of November 25, 1950, Wendell Roberts and wife conveyed to Francis Roberts an undivided one-sixth interest in the lands described as Roberts ■Ranch and Sanitary Meat Co. The said deed was acknowledged June 1, 1951, but was recorded February 14, 1953. It was alleged that no consideration passed for this deed, ■ that its purpose was for decedent’s convenience'in view of the fact that plaintiff was absent from the county for long periods and was.not expected to survive long account of a serious heart ailment. It is also alleged that on March 24, 1953, the parents conveyed to Francis Roberts -the remaining one-half interest in Roberts Ranch and Sanitary Meat Co., at which time they also conveyed an undivided one-half interest in all the livestock and equipment to the ranch and Sanitary Meat Co. This included more than 1,000 head of cattle, automobiles, trucks, machinery, etc. The consideration for the latter conveyance was $15,000 in notes, payable $1,000 per month, interest at 3% with other consideration. Encumbrances on this property amounted to approximately $25,000 and the conveyance w;as on condition that Francis Roberts account to his brother.

Pursuant to this conveyance, the parents made provision by will and certain transfers to the daughter, Anna D. Church, who on May 20,' 1953, conveyed óne-sixth interest in the ranch and Sanitary Meat Company to Francis Roberts. It was alleged that this conveyance was without consideration and that the property passed to decedent for himself and the plaintiff in equal shares. After procuring the legal title and paying off encumbrances, Francis E. Roberts placed a new mortgage on the premises for $60,000. Francis E. Roberts then died intestate leavifig his widow, one of the appellants, and two minor adopted children. It was alleged'that the widow individually and as administratrix fraudulently refused to recognize the interest of the plaintiff with the intent'to deprive plaintiff of his one-half interest. The prayer was for accounting, settlement of claims, equitable relief and determination of undivided interest in the property.

By 'his answer defendant tendered the following defenses: (1) general denial of the material allegations of the complaint; (2) set up certain affirmative defenses; (3) alleged that the consideration for the sale of March 24, 1953, was $15,000 in notes and assumption' by decedent of the mortgage and other encumbrances on the property; (4) deed and bill of sale were delivered in escrow to Wauchula State Bank to be delivered when the mortgage and encumbrances were lifted; (5) conveyances by daughter were also placed in escrow to be delivered when the mortgage was paid; (6) the answer listed other defenses and concluded with the defense that plaintiff did not come into equity with clean hands, that he attempted to establish a constructive trust as result of a fraud perpetrated by him rather than any act of decedent.

On the issues so made, testimony was taken by the court who found “that the equities of the cause are in all respects with the plaintiff and that he is entitled to the relief herein granted.” The material part of the decree is as follows:

“The evidence leaves no reasonable doubt in the Court’s mind that all the properties in question belonged originally to A. Lola Roberts, the mother of the plaintiff, Wendell Roberts, the deceased, Francis Roberts, and Anna Dee Church; that the conveyances of cattle and land (an interest in Roberts Ranch) by A. Lola Roberts (the mother) joined by her husband, to their three children, dated December 1, 1947, and the subsequent conveyances of cattle and land by said parents to Francis Roberts, dated March 24, 1953, were gifts made for the purpose of dividing the properties therein described between their said children. The obligations assumed by Francis Roberts in the deed from parents, of March 24, 1953, plus the notes aggregating $15,000 given by him, constituted a mere fraction of the value of said properties. “Prior to March, 1953, the parents decided (and the children agreed) to give the ranch to their sons and to make other provision for their daughter satisfactory to her. To that end, and without any consideration moving from Francis Roberts, the deed and bill of sale from Anna Dee Church to Francis Roberts, dated May 20, 1953, were executed, and the parents gave said Anna Dee Church • other property therefor.
“Francis Roberts definitely and distinctly agreed with his parents before 'their conveyances to him of March 24, 1953, and before the said conveyances from Anna Dee Church to him, that Wendell Roberts owned, and that he, Francis Roberts, would convey to Wendell Roberts, a one-half undivided interest in all the properties so conveyed ■to him. Such conveyances were made ■to him individually at his solicitation, because he was managing the ranch, ■ and Wendell Roberts was in the vegetable brokerage business, which caused him to be absent from Wauchula for about 90% of the time, much of which was spent in other states. Francis Roberts was not only buying and selling cattle, but procuring loans from time to time with which to operate the ranch, and sometimes was required to secure such loans by mortgages on the cattle or lands, or both, and to procure Wendell’s signature occasioned delay, trouble and some expense. Also, shortly before March, 1953, Wendell Roberts developed a heart condition of such severity that it was doubtful whether he would survive, and Francis urged that if Wendell should not survive, he would be greatly embarrassed in managing and operating the ranch in the event Wendell Roberts had a record interest therein. Francis Roberts repeatedly assured his parents, both before and after the conveyances were made, that he would convey a one-half undivided interest to Wendell Roberts, and said conveyances to Francis were made upon that condition, but Francis died without so conveying.
“The conveyances of his one-sixth interest in the land and cattle by Wendell Roberts to Francis, dated November 25, 1950, acknowledged June 1, 1951, and recorded (deed February 14, 1953, and bill of sale several months after.this suit was brought) were not with the intent to hinder, delay and defraud creditors of Wendell Roberts, and did not have that effect, hut were induced by Francis Roberts to enable him, as manager of. the ranch, to handle, convey and mortgage the property with greater facility and upon Francis Roberts’ distinct and definite promise that he would reconvey the property to Wendell Roberts, which he never did.
“Francis Roberts caused a one-eighth undivided interest in the Sanitary Meats Co. property to be deeded to his father, S. E. Roberts, as well as to Margaret Roberts, the wife of Wendell Roberts, without their knowledge or consent, and upon learning thereof they promptly rejected the proffered title, and disclaimed the apparent ownership.”

The court then entered a detailed order for enforcement of his decree from which this appeal was prosecuted. Several questions are urged for determination but the gist of the controversy is whether or not the chancellor under the circumstances shown was authorized to declare a constructive trust on one-half of the estate of the decedent, Francis E. Roberts.

Appellants contend that the conveyance by Wendell Roberts dated November 25, 1950 was made to defraud creditors and to impede collection of arrears of support payments for his minor children. The chancellor found to the contrary, that said conveyance was for business reasons and that it was prompted by the health of Wendell Roberts. True, one who comes into equity must come with clean hands else all relief will be denied him regardless of the merit of his claim. It is not essential that the act be a crime; it is enough that it be condemned by honest and reasonable men. Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 1945, 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381; Root Refining Co. v. Universal Oil Prod. Co., 3 Cir., 1948, 169 F.2d 514; O’Brien v. O’Brien, 1925, 197 Cal. 577, 241 P. 861; McCord v. Bridges, 1921, 205 Ala. 692, 89 So. 39; Dunscombe v. Amfot Oil Co., 1923, 201 Ky. 290, 256 S.W. 427; Buszozak v. Wolo, Sup.Ct.1925, 125 Misc. 546, 211 N.Y.S. 557. It is not essential that those who invoke equity should have led blameless lives since the doctrine of clean hands is not a judicial straight jacket. The application vel non of the doctrine rests in the sound discretion of the court. American University v. Wood, 294 Ill. 186, 128 N.E. 330. In this case it is not shown that appellants sustained their contention or that the chancellor abused his discretion.

In connection with Wendell Roberts’ claim for workmen’s compensation, appellant contends that he (Wendell Roberts) made a written declaration to the effect that he was an employee of the ranch and had no interest as owner. It appears-that this declaration was made after the death of Francis E. Roberts and just before filing the complaint. Appellants say that this declaration against interest destroys plaintiff’s chances to establish a constructive trust and recover the property. This declaration and the evidence relating to it were reviewed by the chancellor. It is true that Francis Roberts held legal title to the ranch and Wendell Roberts drew a salary from the Sanitary Meat Co., said to-be a subsidiary of the ranch. The chancellor had other testimony before him and upon consideration of what he had before him, we can not say that the elements of estoppel were established against the asserted interest of Wendell Roberts.

It is finally contended that an accounting in favor of Wendell Roberts can not be required if a constructive trust existed prior to date of the transaction on which such a trust is predicated.

The chancellor ordered an accounting from December 1, 1947, to date of the order. The conveyance from plaintiff to decedent was dated November 25, 1950, but was not recorded until February 14, 1953. It is contended that there is no basis in law or fact for accounting to commence in 1947, as decreed. It appears, however, that appellants overlook that December 1, 1947, was the date that the parents conveyed one-sixth undivided interest to each of their children. Long before this conveyance, Francis Roberts had exclusive management of the property and continued such management until the time of his death. We find no error in the order fixing the period of accounting. It appears that the primary contention of appellants turns on the interpretation of the evidence; the chancellor had the witnesses before him, observed them testify and decreed accordingly. He was in much better position to do this than we are. To reverse him would amount to substitution of our judgment for his which we are not authorized to do.

Since no error is made to appear, the decree appealed from is affirmed.

Affirmed.

DREW, C. J., THORNAL, J., and DICKINSON, Associate Justice, concur.


author: THOMAS, Justice.

text:
    E. R. BAXTER, Appellant, v. Dollie DE LOACH, Appellee.
    Supreme Court of Florida. Division B.
    Jan. 20, 1956.
    Joseph C. Jacobs, Live Oak, and J. B. Hodges, Lake City, for appellant.
    David Lanier, Madison, for appellee.
   THOMAS, Justice.

It appears from the allegations of the amended complaint that appellant rented a house from the appellee and took possession. He found that a porch on the rear of the dwelling was rotten, informed the appellee of this condition and requested that it be corrected. In response appellee promised to put the porch in good repair and keep it so. The request and promise were repeated shortly afterward when the tenant paid rent for the second month and the appellant alleged that the consideration for the promise to repair was the payment in advance of this rental. Fifteen days later the appellant, carrying a shotgun, walked across the defective porch in “a careful and prudent manner” and fell through the floor, whereupon the gun discharged and blew off his hand. The damage, claimed the appellant, directly resulted from appellee’s “carelessness and negligence * * * in permitting [the] premises to remain in [an] unsafe condition * *

The judge sustained a motion to dismiss made on the grounds, among others, that it was plain on the face of the complaint that the appellant’s own negligence was the proximate cause of his injury, and that the defect in the porch floor was well known to appellant who discovered the condition and reported it to the appellee.

The appellant tells us that his pleading was drafted on the theory of the decision in Hart v. Coleman, 201 Ala. 345, 78 So. 201, 203, L.R.A.1918E, 213, and also says that although the cause arises from a contractual relationship, the liasis of the action is the negligence of the landlord in his failure to repair.

We think our own decisions govern the disposition of this case despite the attempt of the appellant in his pleading to aver facts resembling those with which the Supreme Court of Alabama dealt. It was held in that case that when a tenant threatened to vacate unless repairs to a rickety floor were made and the landlord met the threat with a promise to repair, the promise was based on a sufficient consideration and the tenant could recover ex contractu for injuries received by falling through the floor. The Alabama court reasoned that the injuries sustained were considered by the parties as possible if the promise to repair was not kept. There are vital differences between the case called by that court “ ‘out of the ordinary’ ” and the case we are deciding. In the former the defective floor was the entrance to the front door; in the latter it was the floor of a back porch. The principal difference relates to the contemplation of the parties. It might be said that they anticipated that damage would result from lack of repair to a porch over which the tenant had to pass to enter his front door, but the landlord should not be charged with expecting a tenant to be injured by walking over a floor he knew was rotten while he carried a loaded shotgun. The only damage alleged to have been suffered was the loss of appellant’s hand and the suffering incident to that injury, all the result of the discharge of the gun.

We do not find in appellant’s complaint any averment of a threat to vacate, or of a consideration forming the basis for a contract. The defect about which appellant complains was not latent or concealed. On the contrary he discovered it and apprised the appellee of it. After his discovery and with knowledge that no repairs had been made, he used the porch at hi's' own risk. Butler v. Maney, 146 Fla. 33, 200 So. 226. To use it, and take a shotgun with him, was an invitation to disaster, and the deduction from his pleading that the appellant’s own negligence caused his injury is not neutralized by the bald allegation that he proceeded with care and prudence.

To state it otherwise, the appellant failed to allege any facts that would justify recovery on the extraordinary theory that he was injured by the negligence of the appel-lee in failing to keep a promise to repair, and, besides, it is plain to this court from the allegations of the complaint that the appellant’s own negligence was his undoing.

Affirmed.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    E. Dana JOHNSON, Appellant, v. Sophia A. SMITH, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 11, 1956.

      W. D. Jobe and James H. Bunch, Jacksonville, for appellant.
    Coffee & Coffee, Jacksonville, for ap-pellee.
   THORNAL, Justice.

Appellant Johnson, who was defendant below, seeks reversal of a judgment against him in an action founded upon an alleged promissory note.

By her complaint appellee alleged that appellant Johnson and another executed and delivered to plaintiff a promissory note in the sum of $7,000 due thirty-six months after date, which said note provided that if at any time the collateral pledged as security therefor should become unsatisfactory to the holder, then the makers would immediately furnish such additional security as would be satisfactory. The complaint further alleges that the collateral became unsatisfactory, that demand was made on the makers to improve the security and that upon their failure to do so, the ap-pellee exercised the rights given to her by the instrument to declare the entire unpaid balance due. It is further alleged that pursuant to an agreement coincident with the execution and delivery of the note, but not incorporated in the note itself, the makers “pledged to the plaintiff as security for the payment thereof that certain certificate for 726 shares of the capital stock of Southern Insurance, Inc. of the par value of ten dollars for each share, the same being certificate number 406”.

Further, it was alleged that, subsequent to the execution of the note the makers agreed to make monthly payments of $100 each against the principal due, although this is not contained in the note itself.

After a motion to dismiss the complaint as amended was denied, the appellant Johnson filed several defenses by an amended answer. The first defense was a denial “that the note sued upon was ever delivered by the makers thereof to the plaintiff”. By his third defense, appellant attempted to allege nondelivery of the note to the plaintiff and to set up an escrow arrangement described in a letter which he made a part of his answer. This letter reads as follows:

“Mrs. Sophia A. Smith
“170 Lindbergh Drive, >N. E.
“Atlanta, Ga.
“Dear Mrs. Smith:
“This is to acknowledge to you receipt of stock certificate #406 of Southern Insurance, Inc, representing 726 shares of the capital stock of said Company, said stock to be held in escrow for delivery to Dan Y. Sage, Jr., and E. Dana Johnson but to be delivered to them only after payment by them of seven thousand dollars.
“We further acknowledge receipt of assignment from E. Dana Johnson of •$100.00'per month, to be withheld from his earnings with the Company each ■month until $3,500.00 has been paid to .you, at the rate of $100.00 per month •and we acknowledge receipt of an assignment of $100.00 per month from Dan Y. Sage, Jr. to be withheld from bis salary and earnings from the Company to be paid to you each month until the sum of $3,500.00 has been paid.
“We further acknowledge receipt of ■a promissory note secured by said stock in the sum of $7,000.00 signed by Dan Y. Sage, Jr., and E. Dana Johnson, to which notes the sums assigned as above provided are to be applied, in the total monthly amount of $200.00 per month for a period of thirty-five (35) months beginning April 1st, 1952, and upon final payment, either at, before or after maturity of the last installment payment said stock and ■stock transfer shall be delivered to Dan Y. Sage, Jr. and E. Dana Johnson or to their order.
“Very truly yours,
“Southern Fire and Marine Insurance Company
“(signed) J. R. Smith
“Vice President
“This escrow agreement approved and accepted this 8th day of March, 1952.
“(signed) Sophia A. Smith
“c/o Mrs. Thomas Morris
“170 Lindbergh Dr., N. E.”

The answer then alleges that the escrow agent wrongfully delivered the note and stock certificate to the plaintiff, that after this particular defendant had paid $1700.00 on the note, the corporation, Southern Insurance, Inc. went out of business, that the stock became worthless and that the stock certificate had never been received by appellant and prior to the action had been turned over to the appellee along with the note. The tendered defenses were stricken on the motion of the appellee and the appellant elected to stand on his defenses and declined to plead further.

The trial judge thereupon entered a default judgment against him and a final judgment ensued upon the default for the balance due on the note.

Numerous errors are assigned based on rulings on the motion to dismiss and the striking of numerous interrogatories propounded by the appellant. Our decision on the main questions, however, we believe, will dispose of these incidental problems.

By his first defense the appellant denied that the note sued upon was ever delivered. If proven, this would have been a valid legal defense to the cause of action set forth in the complaint. It should be noted that the complaint was grounded entirely upon the promissory note. In order to establish the binding effect of a promissory note between the parties, delivery to the payee is an essential prerequisite. Furthermore, in a suit upon a promissory note, if between the original parties thereto, nondelivery is a valid defense. While there may be a presumption of delivery, the presumption is rebuttable, with the maker who denies the delivery carrying the burden of proof. See Section 674.18, F.S., F.S.A.; Felkel v. Abernethy, 112 Fla. 358, 150 So. 631; Cockrell v. Taylor, 122 Fla. 798, 165 So. 887, 105 A.L.R. 1338. We therefore hold that it was error to strike the tendered defense denying delivery of the instrument sued upon.

Inasmuch as the case will require further proceedings in the lower court, and for the guidance of the parties therein, we pass upon the ruling with reference to the third defense offered by the amended answer. By this defense, the appellant attempted to show that the promissory note described in the complaint was a part of a transaction for the sale and purchase of stock in a corporation, the entire transaction being evidenced by the note, the stock certificate and the escrow arrangement covered by the letter . hereinabove quoted. Under such circumstances it is appropriate to show all of the documents evidencing the agreement between the parties as constituting the entire transaction as distinguished from merely producing the promissory note as an isolated segment of the transaction. Under this view the contract between the parties consists not only of the promissory note but also of the several documents going to make up the composite agreement. When the agreement between the parties consists of several instruments, it is proper to insist that all of the documents be placed before the court as establishing the rights of the parties thereto. See Spadaro v. Baird, 97 Fla. 50, 119 So. 788.

By his third defense the appellant attempted to show that the note sued upon not only never had been delivered to the appellee but also that the note was evidence of merely a part of the transaction and that the entire transaction consisted of the note supplemented by the accompanying explanatory escrow arrangement. An analysis of this arrangement will reveal that it contains no provisions for the disposition of the note or the stock certificate in the event that the makers of the note should default in making the monthly payments described in the arrangement.

In view of this situation we are necessarily led to the conclusion that under this defense it appears that the agreement between the parties consisting of the note and the escrow arrangement created a transaction tantamount to an agreement by the ap-pellee to sell and the appellant to buy the 726 shares of stock in Southern Insurance, Inc. This leads to the conclusion further that any right of action the appellee might have may be an action for breach of the contract to purchase and damages ensuing upon the breach rather than an action on the note itself which had never been legally delivered according to the tendered defense. The action then for the breach of the contract, if asserted, would be subject to such appropriate defenses as might be alleged and proved by the defendant. See Aughtry v. Keary, 112 Fla. 609, 150 So. 804; Gray v. Baron, 13 Ariz. 70, 108 P. 229.

It was therefore error to strike the third defense offered by the amended answer. The burden will be upon the appellant to prove the defenses alleged because of the presumed delivery of a promissory note as between the parties but if he succeeds in proving the asserted defenses, they would constitute valid defenses to the particular cause of action set_ forth in the complaint.

For the foregoing reasons, the judgment appealed from is hereby reversed.

DREW, C. J„ TERRELL, J., and DICKINSON, Associate Justice, concur.


author: McBRIDE, Judge.

text:
    Anthony J. CIGALI v. Alvin KAPLAN.
    No. 18732.
    Court of Appeal of Louisiana. Orleans.
    Jan. 16, 1956.
    Alvin Kaplan, in pro. per.
    Clem PI. Sehrt, Edward J. Boyle and Dudley A. Philips, Jr., New Orleans, for Mrs. Eleonore Duffard Cigali, appellee.
   McBRIDE, Judge.

Plaintiff brought this suit for $600 on two promissory notes for $300 each; defendant filed an answer, and then plaintiff by rule submitted to the court below the question of his right to a judgment on the face of the petition and answer (as authorized by LSA-R.S. 13:3601) and recovered judgment as prayed for in the petition, from which the defendant has appealed.

When the matter was called for argument before us the defendant, appearing in propria persona, filed a motion for such relief “as he may be entitled through nearly ten years of illegal maneuvers in the efforts of the attorneys of record trying to make a tool of the Court of Appeals to chip away by unauthorized delays the very foundations the judicial system that is struggling to preserve our American way of life and the freedom and the very existence of those working and professional men who still believe in the integrity of our courts. May God save our judicial system and our Constitution.”

No good purpose would be served by reciting the contents of the motion as nothing is tendered requiring a ruling. The appeal presents only the question whether the allegations of the answer constitute any defense to the claim made by plaintiff on the promissory notes.

Defendant admits that he signed the notes. He alleges “that when and if the interrogatories on facts and articles * * * attached hereto and made part of this answer, are duly and truly answered by the Plaintiff, there will be no foundation for the Plaintiff to continue this cause of action, * * * ”

Defendant then sets forth that during 1944 he performed certain services for plaintiff “not including services rendered to the Agents of the Plaintiff nor for the partnership of Calongne and Cigali nor for the partnership of Allen and* Calongne * * * amounting to $8,459.-75,” and that the demand by plaintiff on the two notes “has been fraudulently and by misrepresentation brought against the de~ fendant.”

The plea of compensation and set-off, if it can be called such, is the only semblance of a defense to the suit.

C.P. art. 366 provides that compensation, or set-off, is a mode of extinguishing debts which takes place when it happens that both the plaintiff and defendant are indebted to each other; each retaining in payment of the sum due to him the amount which he owes to the other. The following article, C.P. art. 367, provides that the defendant may plead compensation, or set-off, at every stage of the proceedings provided that the plea be specially made.

Defendant in his answer nowhere sets forth with precision his counterclaim against plaintiff; particularly there is no mention of the dates on which the alleged services were rendered by defendant, the nature of such services, whether the contract therefor was oral or written, etc.

As we said in Cigali v. Kaplan, La.App., 37 So.2d 467, 468:

“A plea of compensation, set-off, or a reconventional demand should be set forth with the same certainty as to amounts, dates, items, etc., and the manner in which the right thereto was acquired, as though the party relying on it were plaintiff in the suit, in order that the plaintiff may properly defend himself against such claim. The failure to meet this exaction is fatal to the plea, and the penalty is deprivation of the right of submitting proof of the claim. Busby v. Childress, La.App., 187 So. 104; Robert v. Blythe Co., La.App., 145 So. 15; Bloomenstiel v. McKeithen, 19 La.App. 513, 139 So. 519.”

Since the defendant has not the right to support his plea by evidence, it is not to be doubted that the entry of the judgment in plaintiff’s favor on the face of the petition and answer was proper.

During the pendency of the appeal the plaintiff departed this life and in due course and by proper proceedings the ad-ministratrix of his succession was made appellee in his stead.

The judgment appealed from is amended .so as to run in favor of Mrs. Eleonore Duffard Cigali, administratrix of the Succession of Anthony J. Cigali, and as thus amended and in all other respects it is affirmed.

Amended and affirmed.