author: O’CONNELL, Justice.

text:
    The FLORIDA NATIONAL BANK AT ST. PETERSBURG (Florida), a National Banking Corporation, Appellant, v. L. J. GEER, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
    Ed W. Harris and Harris & Wing, St. Petersburg, for appellant.
    Merle E. Rudy, St. Petersburg, for appel-lee.
   O’CONNELL, Justice.

The appellant, The Florida National Bank at St. Petersburg, hereinafter referred to as the bank, was defendant below and the appellee, L. J. 'Geer, hereinafter referred to as Geer, was the plaintiff.

After a portion of the bank’s answer was stricken by the court a summary final decree was awarded Geer requiring the bank to restore to the account of Geer with the bank the sum of $1,000. That sum had previously been removed from Geer’s account by the honoring of a check which was not endorsed by the payee named therein. The bank appeals the order striking a portion of its answer and the summary final decree.

The record shows that Geer made a check in the amount of $1,000 payable to the order of N. C. Baughman drawn on the bank. The check was endorsed, not by the payee N. C. Baughman, but by C. N. Baughman, son of N. C. Baughman. C. N. Baughman cashed the check at the Union Trust Company in St. Petersburg and that bank presented the check for payment to the defendant bank. The bank paid the Union Trust Company, removing $1,000 from Geer’s account.

Geer filed a complaint in chancery charging the bank with wrongfully and unlawfully removing the sum from his account in that the defendant paid without proper endorsement a check drawn on his account. Geer also alleged that N. C. Baughman and C. N. Baughman are father and son; that in his business as a general contractor Geer had done business for years with the Baughmans who were plastering contractors doing business under the name of “N. C. Baughman & Son”; and that when the son, C. N. Baughman, obtained the proceeds of the check he diverted them to his own use and failed to pay for plastering materials “used under his subcontract with the plaintiff” for which materials Geer was subsequently compelled to pay, in the sum of $1,010.65. He alleged that C. N. Baugh-man was insolvent.

The bank filed its answer, motion to dismiss, and cross-claim. In its answer it admitted it had cashed the check without the endorsement of the named payee but denied that Geer suffered any damages. It alleged it was informed and believed that the particular work for which payment was received by C. N. Baughman was work subcontracted for by Geer with C. N. Baugh-man individually; that Geer erroneously and through his own fault made the check payable to N. C. Baughman; and that the check actually belonged to C. N. Baughman and that he was authorized to get the proceeds thereof. The bank then alleged that if the check had been made payable to C. N. Baughman the proceeds thereof would have been used just as they had been used and that therefore Geer suffered no damage by the check having been improperly drawn and endorsed by C. N. Baughman.

The bank moved that Geer’s action be dismissed for the reason, among others, that the complaint showed that if there were any irregularity in the endorsement it was due to the fault of Geer, who made the check payable to the wrong party, and that the right party received the money to which he was entitled.

The bank filed a cross-claim against the Union Trust Company, N. C. Baughman and C. N. Baughman. N. C. Baughman filed an answer thereto, stating that he had no interest in the litigation or in the $1,000' check or the proceeds thereof and that he had sold his interest in the business to his son who was the rightful owner of the check.

Geer moved to strike from the answer of the bank the portion thereof which set up the defense that the proceeds of the check actually belonged to C. N. Baughman, the person who endorsed and received the proceeds of the check, that the check had been erroneously made to N. C. Baughman, and that Geer had suffered no damage by the bank having cashed the check without the endorsement of N. C. Baughman.

After hearing argument, the court entered its order denying the bank’s motion to dismiss Geer’s complaint and granting the motion to strike the above mentioned portion of the bank’s answer.

Geer moved for summary decree without supporting affidavits and the court entered a summary final decree wherein the bank was ordered to restore to the account of Geer the sum of $1,000, “which sum had previously been removed from said account by honoring a check which was not endorsed by the payee named therein.”

The bank contends that it incurs no liability for payment of a depositor’s check, whether improperly endorsed or not endorsed at all, if it can be shown that the proceeds of the check reached the intended payee. It argues that the test in such case is whether the endorsement is made by the person whom the drawer intended to be the payee.

Geer’s response to this contention is that it was manifest from the pleadings that he intended N. C. Baughman to receive the proceeds of the check. Geer’s complaint does not allege that N. C. Baughman was the one to whom the proceeds of the check were due, in fact he alleges that:

“ * * * he (C. N. Baughman) diverted and converted said funds to his own use, and failed to pay for plastering materials used under his (C. N. Baughman’s) sub-contract with the plaintiff to an extent greater in amount than the sum thus wrongfully with•drawn, for which materials the plaintiff (Geer) was subsequently compelled to pay. * * * ” (Matter in parenthesis supplied by us.)

'Geer explains that he made the check payable to the father rather than to the son because he had reason to mistrust the son and ■doubted his financial stability.

Geer argues also that the bank, at the time it cashed the check in question, had no knowledge of the allegations stricken from its answer by the court, and therefore should not be entitled to prove same to excuse itself from liability.

The bank cites Sec. 674.11(3), F.S.A., which is Sec. 9, The Negotiable Instruments Law, as controlling this case:

“The instrument is payable to bearer:
S}< 5{< * * *
“(3) When it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable * * ”

The application of the above cited statute is dependent upon the definition of the term “Fictitious person” or fictitious payee.

In the case of Johnston v. Exchange Nat. Bank of Tampa, 1942, 152 Fla. 228, 9 So.2d 810, 811, this Court, speaking through Mr. Justice Thomas, approved the definition of the term as found in Soekland v. Storch, 123 Ark. 253, 185 S.W. 262, Ann.Cas.1918A, 668 as follows:

“ ‘Whenever the name is inserted as payee without any intention that payment shall be made only in conformity therewith, the payee then becomes a fictitious person. In other words, under the rule a “fictitious payee” means a fictitious person, who, though named as payee in the note, has no right to it, or the proceeds of it, because it was not so intended when the note was executed. Therefore whether the paper is to be considered as having a fictitious payee depends upon the knowledge or intention of the party against whom it is attempted to assert the rule, and not upon the actual existence or nonexistence of a payee of the same name as that inserted in the instrument; so that, on the one hand, a real person may be fictitious, and, on the other, a nonexisting person may be real within this rule.’ ”

In the Johnston case this Court also approved the definition of the same term given in First Nat. Bank of Kansas City v. Produce Exch. Bank, 1935, 338 Mo. 91, 89 S.W.2d 33, 37 as follows:

“ ‘the payee named in an instrument will be deemed fictitious though designating an existing person, if there was no intent he should have a beneficial interest in the paper.’ ”

In the Johnston case this Court, on p. 812, in citing the definition given in Norton v. City Bank & Trust Co., 4 Cir., 1923, 294 F. 839, 844, said:

‘“A negotiable instrument is drawn to a fictitious payee whenever the payee named in it has no right to it, and its maker does not intend that such payee shall take anything by it,’ fictitiousness therefore depending on'the intention of the maker and the payee’s right to the proceeds.”

In McKenna, Negotiable Instruments, 10 Miami Law Quarterly 374 (1956), the author, citing Johnston v. Exchange Nat. Bank of Tampa, supra, states that in Florida, as of June 1955, a genuine endorsement of the payee is not necessary to a transfer of title to a negotiable instrument either where the person executing the instrument, or his agent who supplied the name, never intended the named payee to receive payment. He comments that such an instrument will be treated just as though it were payable to bearer, on its face.

It therefore appears that the above quoted section of the Negotiable Instruments Law and of our Statutes, Sec. 674.-11(3), is interpreted as if it read:

“the instrument is payable to bearer when it is payable to the order of a person whom the person making it so payable intended should have no interest in the instrument.” Britton on Bills and Notes, ch. 4, sec. 149, p. 700 (1943).

Following the above cited construction of the statute and definitions of the term “fictitious person” it seepas clear that the bank will be relieved of liability in this case if it can prove that the check was payable to a fictitious person, or stated another way, if it can prove that N. C. Baughman had no right to the check and that- Geer, the maker, did not intend that N. C. Baughman receive the proceeds thereof. It follows that the bank should have been allowed to allege and to prove such facts and intent. While the allegations of the answer which were stricken could well he improved we are inclined to the view that they are sufficient to support proof which could show the check to have been made to a “fictitious person” and therefore that it was a bearer instrument. If it was a bearer instrument the endorsement of N. C. Baughman would not be required. For the above reasons it was error to strike the relevant portions of the bank’s answer.

If the bank be not able to prove the essentials necessary to bring this case under the “fictitious person” doctrine there is a rule of law supporting the bank’s contention that there is no liability on a drawee bank for paying a check on a faulty or improper endorsement, or even without endorsement, if the bank proves that the intended person received the proceeds of the check. Modern Equipment Corporation v. Northern Trust Company, 1936, 284 Ul.App. 586, 1 N.E.2d 105; Norton v. City Bank & Trust Co., 4 Cir., 1923, 294 F. 839; Moore v. Moultrie Banking Company, 1929, 39 Ga. App. 687,148 S.E. 311; Lanasa v. Griswold, 1926, 151 Md. 26, 133 A. 840; Lincoln Bldg. & Loan Ass’n v. Liberty Nat. Bank and Trust Company, 1950, 312 Ky. 282, 227 S.W. 2d 191; Sweeney v. National City Bank of Troy, 1939, 256 App.Div. 1022, 10 N.Y.S.2d 796; and Segal v. National City Bank of New York, 1945, 269 App.Div. 986, 58 N.Y. S.2d 261.

The rule followed in the cases just above cited is based on the sound reasoning that when a bank pays funds to a person whom a depositor intended to receive them the bank has performed its duty to the depositor. Nor does it matter that the bank did not know at the time it paid a check, without proper endorsement, that the intended person would in fact receive the proceeds, if it can prove that such person did receive them. Modern Equipment Corporation v. Northern Trust Company, supra, 1 N.E.2d at pages 107-108. Therefore the bank should have been allowed to allege that C. N. Baughman was the person intended to receive the proceeds of the check and that he did receive them.

Our holding that the order striking portions of the bank’s answer was error requires us to hold that the entry of the summary final decree was also error.

We have only decided that the bank should have the opportunity of proving either that the check in question was payable to bearer under the provisions of Sec. 674.-11(3), F.S.A. as discussed herein or that the intended person received the proceeds of the check, and that if it can prove either situation it is relieved of liability for its payment of the check without proper endorsement.

Reversed for further proceedings consistent with this opinion.

TERRELL, C. J., HOBSON and THOR-NAL, JJ., and LUCKIE, Circuit Judge, concur.


source: Caselaw Access Project

author: Per Curiam. GLENN TERRELL Chief Justice ELWYN THOMAS FRANK HOBSON B. K. ROBERTS HARRIS DREW CAMPBELL THORNAL STEPHEN C. O’CONNELL Justices.

license: Public Domain

text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida. En Banc.
    June 27, 1957.
   Per Curiam.

Supreme Court of Florida Glenn Terrell, Chief Justice Tallahassee June 26, 1957

Honorable LeRoy Collins Governor of Florida Tallahassee, Florida

Dear Governor:

We.have the honor to acknowledge your letter of June 21, 1957, submitting to us under Section 13 of Article IV of the Constitution of Florida-F.S.A. a request for advice relating to your executive powers and duties. Your letter reads as follows:

“Honorable Glenn Terrell, Chief Justice, and Honorable Justices of the Supreme Court of Florida
Supreme Court Building Tallahassee, Florida
“Gentlemen:
“Article VII, Section 3 of the Florida Constitution provides:

“ ‘The Legislature that shall meet in regular session A.D. 1925, and those that shall meet every ten years thereafter, shall apportion the Representation in the Senate, and shall provide for thirty-eight (38) Senatorial Districts, such Districts to be as nearly equal in population as practicable, but no county shall be divided in making such apportionment, and each district shall have one Senator; and, at the same time, the Legislature shall also apportion the Representation in the House of Representatives, and shall allow three (3) Representatives to each of the five most populous counties, and two (2) Representatives to each of the next eighteen more populous counties, and one Representative to each of the remaining counties of the State at the time of such apportionment. Should the Legislature fail to apportion the Representation in the Senate and in the House of Representatives, at any regular session of the Legislature at any of the times herein designated, it shall be the duty of the Legislature or Legislatures succeeding such regular session of the Legislature, either in special or regular session, to apportion the Representation in the Senate and in the House of Representatives as herein provided. The preceding regular Federal or regular State census, which ever shall have been taken nearest any apportionment of Representatives in the Senate and in the House of Representatives, shall control in making any such apportionment. In the event the Legislature shall fail to reapportion the representation in the Legislature as required by this amendment, the Governor shall (within thirty days after the adjournment of the regular session), call the Legislature together in extraordinary session to consider the question of reapportionment and such extraordinary session of the Legislature is hereby mandatorily required to reapportion the representation as required by this amendment before its adjournment (and such extraordinary session so called for reapportionment shall not be limited to expire at the end of twenty days or at all, until reapportionment is effected, and shall consider no business other than such reapportionment) .’

“During the regular biennial session of 1955, convened pursuant to Section 2 of Article III of the Constitution, the Florida Legislature failed to reapportion the representation in the Legislature in accordance with the provisions of the first sentence of Section 3 of Article VII; therefore, on June 3, 1955, in keeping with the last sentence of Section 3 of Article VII, I issued my proclamation calling the Legislature into extraordinary session commencing on June 6, 1955, to consider the question of reapportionment. The Legislature convened in accordance with such proclamation, passed House Bill No. 4-X, which was approved by me on June 18, 1955, and delivered to the office of the Secretary of State on that date. Such House Bill No. 4 — X was designated Chapter 31378, Laws of Florida, Extraordinary Sessions, 1955-1956 and Section 10.03, Florida Statutes Annotated. Said Chapter 31378 reapportioned representation in the House of Representatives but did not reapportion representation in the Senate.

“Between July 23, 1956 and August 1, 1956 the Legislature was in special session for the consideration of matters not involving reapportionment.

“On April 2, 1957, the 1957 Regular Biennial Session of the Florida Legislature was convened and the same continued in session, after having extended itself for a period of eight days, until June 8, 1957. Such session adjourned sine die at one o’clock, P.M. on the latter date.

“At none of the sessions aforesaid of the Florida Legislature was any reapportionment of representation in the Senate effected. During the 1957 session aforesaid, the Constitutional Amendments Committees of the Senate and the House of Representatives recommended to their respective branches of the Legislature the passage of various revisions of Articles of our State Constitution, including changes in the provisions of present Section 3 of Article VII. The Legislature adjourned, however, on June 8, 1957 without having reapportioned as required by present Section 3 of Article VII or proposing a revision of Article VII.

“Before adjournment on June 8, the Legislature adopted Senate Concurrent Resolution No. 1406, a copy of which is attached hereto. The preamble of such Resolution asserts that the members of the Senate and the House of Representatives are at variance with reference to many provisions of the proposed revision of the State Constitution and that the most efficient and time saving method of resolving such differences is with the aid of a joint committee of members of the two houses of the Legislature.

“It is anticipated that the report of this committee should be ready sometime during the early Fall of this year, and it is my desire, if progress has been made sufficiently to justify it, to reconvene the Legislature in special session sometime between the first part of September and December 1, 1957 to continue consideration of Constitutional revision. It is possible, of course, that as a consequence of the committee report, the Legislature will not only approve a revision of Section 3, Article VII, but also may thereby provide what could become actual legislative reapportionment upon the ratification of such Article; however, if such is not the case, I shall consider it my duty as Governor to again convene the Legislature in extraordinary session for the special purpose of reapportionment as now required by the Constitution.

“You will note that in the fourth sentence of present Section 3, Article VII, it is-provided that in the event the Legislature shall fail to reapportion the representation in the Legislature as required thereby, the Governor shall (within thirty days after the adjournment of the regular session),, call the Legislature together in extraordinary session to consider the question of reapportionment. In view of the situation reflected above, I do not think it is practical, and I should prefer not to impose on the State of Florida the expense of reconvening the Legislature at this time to consider reapportionment. Rather I would regard it as prudent to postpone the consideration of reapportionment pending the consideration of constitutional revision, as aforesaid.

“I, therefore, respectfully request of you pursuant to Section 13, Article IV of the Constitution an opinion in writing upon the following questions:

“1. In the event that I do not call the Legislature into extraordinary session within thirty days after the adjournment of the 1957 regular session of the Legislature for the purpose of reapportioning, may I,, after the expiration of such thirty-day period, lawfully convene the Legislature by call under Section 3 of Article VII of the Constitution for the sole purpose of reapportioning Senatorial representation?’
“2. If the answer to the foregoing is in the negative, may I lawfully issue such a call within the thirty-day period but for the convening of such a session in the Fall, say November 1, 1957?
“3. If such a call is made as contemplated by the preceding question, may such be retracted and cancelled by me before the Legislature convenes if it is determined that the necessity therefor no longer exists because of action taken in the constitutional revision special session?
“Respectfully,
/s/ LeRoy Collins
Governor”

In answer to your question No. 1 you are advised that your constitutional authority to call the Legislature into extraordinary session under Section 3, Article VII of the Constitution expires thirty days after the adjournment of the regular session. Specifically, your authority to exercise the power granted by Section 3 of Article VII of the Constitution in the situation outlined in your letter will expire at one o’clock P.M. July 8, 1957. This limitation, of course, does not apply to your authority to call the Legislature into’ special session pursuant to the provisions of Section 8, Article IV of the Constitution.

Our answer to your question No. 2 is yes. Section 3, Article VII of the Constitution makes it your duty to issue the executive call during the thirty-day period following the regular session. The actual date of the convening of the extraordinary session must be stated by the call. The thirty-day period provided by the constitutional provision in question applies to the issuance of the call. The date of the convening of the Legislature pursuant to the call involves the exercise of executive discretion which in all instances should be governed by the necessities and exigencies of the occasion justifying the call. Once the call has been issued, however; the date fixed therein for the convening of the Legislature cannot be changed by you after the expiration of the thirty-day period within which the call must be issued.

Our answer to your question No. 3 is yes, provided the call is retracted or canceled before the Legislature convenes pursuant thereto. Justification for the exercise of the executive power to call the Legislature into special or extraordinary session is the existence of some impelling public necessity requiring legislative action. If the public necessity ceases to exist, the need for the legislative session likewise ceases to exist. It thereupon becomes the duty of the executive to avoid the expense of a legislative session by retracting the proclamation calling the Legislature into session.

Respectfully,

GLENN TERRELL Chief Justice

ELWYN THOMAS

FRANK HOBSON

B. K. ROBERTS

HARRIS DREW

CAMPBELL THORNAL

STEPHEN C. O’CONNELL Justices.


author: PER CURIAM.

text:
    Kenneth D. ROSEN and Patricia O. Rosen, his wife, Appellants, v. Jacob HARRIS and Lorelei Harris, his wife, Appellees.
    Supreme Court of Florida.
    July 3, 1957.
    Martin Lemlich, Miami, for appellants.
    Taylor, Boehme & Yocom, Miami, for ap-pellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment appealed from pursuant to 31 F.S.A. Rule 38 of the rules of this court 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.

TERRELL, C. J., and HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.


text:
    Jeannette Bobo DAVIS, as an individual and as the mother of Jeannette Arliene Bobo, deceased, and Jeannette Bobo Davis, as Administratrix of the Estate of Jeannette Arliene Bobo, deceased, Appellant, v. BOARD OF PUBLIC INSTRUCTION FOR BROWARD COUNTY, Florida, Appellee.
    Supreme Court of Florida.
    July 3, 1957.
    Smith & Carter, Miami, for appellant.
    McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, 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, 31 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.

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


author: ROBERTS, Justice.

text:
    MIRACLE HOUSE CORPORATION, Appellant, v. Agnes HAIGE, Lander Haige, Enar Haige, Allan Haige, and George K. Kickliter, Receiver, Appellees.
    Supreme Court of Florida.
    July 10, 1957.

      Holland, Betts & Hobson, St. Petersburg, for appellant.
    Wm. C. Kaleel and Luke R. Kaleel, St. Petersburg, for appellees.
   ROBERTS, Justice.

The sole issue here is the propriety of the lower court’s order denying the petition of appellant to intervene in a cause therein pending in which the appellees were contesting their respective rights in and to certain property.

Rule 3.4, Fla.Rules Civ.Proc.19S4, 31 F. S.A., provides that “Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” This rule is derived from Equity Rule 9, which was the same as Sec. 9 of the Chancery Act, Sec. 63.09, Fla.Stat.1949, F.S.A. In construing the statute from which the rule derived, this court said in Morgareidge v. Howey, 1918, 75 Fla. 234, 78 So. 14, 15, that

“It has generally been held that the interest which will entitle a person to intervene under this provision must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.”

Here, the appellant had a very real interest in a parcel of the property in litigation by virtue of a contract of purchase and sale thereof executed in its favor by one of the appellees. The determination of the rights of the appellees would have a direct effect on the rights of the appellant under its contract. All the parties and the res were before the court; and in view of the aim of the rules to allow liberal joinder of parties and claims and the policy of equity to grant complete relief and avoid a multiplicity of suits, we. think the lower court had full authority to allow the intervention and decide the issue therein made. See Switow v. Sher, 1939, 136 Fla. 284, 186 So. 519, 525, holding that an inter-venor’s cross-bill raising a new issue is proper “where some special circumstances such as insolvency and nonresidence exist, which render it necessary to depart therefrom in order, to avoid irreparable injury.” Cf. also Singletary v. Mann, 1946, 157 Fla. 37, 24 So.2d 718, 166 A.L.R. 904; Bancroft v. Allen, 1937, 128 Fla. 14, 174 So. 749; Tallentire v. Burkhart, 1942, 150 Fla. 137, 7 So.2d 326.

In view of the court’s proposal to approve a sale of the subject property by the receiver and the absence from the country of the appellee who executed the contract of purchase and sale in favor of appellant, we think there can be no doubt that the appellant will be irreparably injured by the denial of its request for intervention in the pending litigation.

We hold, therefore, under the authority of the above-cited cases, that intervention could and should have been allowed to the appellant and that it was error not to do so.

The order appealed from is reversed and the cause remanded for further proceedings not inconsistent with the opinions herein expressed.

It is so ordered.

TERRELL, C. J., and DREW, THOR-NAL and O’CONNELL, JJ., concur.


text:
    Frances O. WARRINER, Appellant, v. Emett C. CHOATE, Appellee.
    Supreme Court of Florida.
    July 3, 1957.
    Frances O. Warriner, in pro. per.
    Dan Chappell, Samuel J. Kanner and Henry M. Sinclair, 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 31 F.S.A. Rule 38 of the rules of this court 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.

TERRELL, C. J., and HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.


text:
    Elizabeth ORWICK and William Glenn Orwick, her Husband, Appellants, v. MERCY HOSPITAL, Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida, Division B.
    June 12, 1957.
    Rehearing Denied July 17, 1957.
   PER CURIAM.

Affirmed.


text:
    French C. DAVIS, Appellant, v. PENSACOLA NEWS-JOURNAL COMPANY, a Florida Corporation, Winifred H. Matthews and Carol Weld, Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    FLORIDA NATIONAL BANK AT LAKELAND, a National Banking Corporation, Appellant, v. LODWICK AIRCRAFT INDUSTRIES, Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    GULF EQUIPMENT COMPANY, Inc., a Florida Corporation, Appellant, v. Curtis HIXON, as Mayor of the City of Tampa, et al., Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    LODWICK AIRCRAFT INDUSTRIES, Inc. (E. N. Belcher, Sr., et al., Plaintiffs), Appellant, v. FLORIDA NATIONAL BANK AT LAKELAND (Cross Complainant) (Southern Crushed Stone Company, et al., Defendants), Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    William H. MARTIN, Appellant, v. L. W. NELSEN and A. L. Nelsen, d/b/a Brady Roofing Tiles Mfg. Co., Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    Sewall M. PASTOR, Appellant, v. L. Lillian PASTOR, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    In re ESTATE of Emma SCHON, Deceased. Arthur A. SCHON, Heir, and Betty Schon, Party in Interest, Appellants, v. Herbert S. WEISS, Attorney for Executor, Appellee.
    Supreme Court of Florida, Special Division B.
    June 19, 1957.
   PER CURIAM.

Affirmed.


text:
    COUNTY of SARASOTA et al., Appellants, v. Mary M. BLACKBURN and Albert E. Blackburn, Appellees.
    Supreme Court of Florida, Division B.
    June 28, 1957.
   PER CURIAM.

Affirmed.


text:
    COUNTY of SARASOTA et al., Appellants, v. Louella B. ALBEE, Appellee.
    Supreme Court of Florida, Division B.
    June 28, 1957.
   PER CURIAM.

Affirmed.


text:
    Mildred Phyllis TISON and Chester Earl Tison, Appellants, v. BISCAYNE KENNEL CLUB, Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida, Division A.
    June 28, 1957.
   PER CURIAM.

Affirmed.


text:
    AERODEX, Inc., a New York Corporation, Appellant, v. TRANS-CARIBBEAN AIRWAYS, Inc., a Delaware Corporation, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
   PER CURIAM.

Affirmed.


text:
    Elmer MASON, Nancy Louverne Farmer, Barbara G. Harlan, and Patricia Ann Hochstetler, Appellants, v. Roland M. STAFFORD and Doris Stafford, his Wife; and J. C. Grimm and Jean Grimm, his Wife, Appellees.
    Supreme Court of Florida.
    July 10, 1957.
   PER CURIAM.

Affirmed.


text:
    Leona NELSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
   PER CURIAM.

Affirmed.


author: PEARSON, Judge.

text:
    Horace GRIFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 57-18.
    District Court of Appeal of Florida. Third District.
    July 22, 1957.
    Rehearing Denied Aug. 12, 1957.
    Courshon & Fink, Miami Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Sp. Asst. Atty. Gen., for ap-pellee.
   PEARSON, Judge.

The appellant, Griffin, was indicted for murder in the first degree, and was convicted of murder in the second degree. The pleas interposed were (1) not guilty, and (2) not guilty by reason of temporary insanity. At the conclusion of all the evidence the trial court refused to instruct upon the issue raised by the plea “not guilty by reason of temporary insanity”, although there was some evidence in support of this plea. The refusal to instruct on the issue of temporary insanity was assigned as error in the appeal to this Court. The judgment is reversed, and a new trial awarded.

Upon filing of the plea of “not guilty by reason of temporary insanity”, the trial court appointed two psychiatrists pursuant to Sec. 917.02, Florida Statutes 1955, F.S.A., to examine the defendant. The examination was made and the court appointed physicians testified at the trial as rebuttal witnesses for the State. The testimony of one of the psychiatrists as to the mental condition of the defendant at the time of the commission of the alleged crime was as follows: “I do not think that he was temporarily insane but his consciousness was somewhat clouded.”

There was evidence in the record that the defendant was a long-continued and habitual drinker; that his appearance and conduct prior to the homicide was unusual; that he began drinking the day before and he continued to drink the day of the homicide consuming an indefinite amount of bootlegged whiskey and beer.

The court refused to give the following charge requested by the defendant, and error is assigned thereon:

“While the mental effect of a mere intoxication may not excuse the commission of an unlawful act or relieve from its consequences, yet if excessive and long-continued use of intoxicants produce a mental condition of insanity permanent or intermittent, and that such insane condition exists when an unlawful act is committed, such insane mental condition may he of a nature that would relieve the person so affected from the consequences of the act that would otherwise be criminal and punishable. Therefore, gentlemen of the jury, should you find from the evidence beyond a reasonable, doubt that the defendant stabbed and killed Lola Griffin, if he did kill her, was at the time in such a state of fixed or settled frenzy or mental insanity induced by antecedent and long-continued use of intoxicating drinks or liquors, and not produced by the immediate effect of intoxicating drinks, as not to have been conscious of what he is doing, or that the act was wrong, you will find the defendant not guilty.”

The sole point for determination is whether the court erred in refusing to charge upon the issue of temporary insanity.

“Where the insanity of the accused is a material issue in a criminal prosecution, the court should, by charges appropriate to the evidence in the case, submit to the jury, for their determination, the question whether the accused, at the time of the unlawful act alleged against him, had a sufficient degree of reason to know that he was doing an act that was wrong. Davis v. State, 44 Fla. 32, 32 So. 822. The phase of insanity commonly known as the ‘irresistible impulse’ or ‘moral insanity’ doctrine is not recognized in this state as an excuse for an unlawful act. Williams v. State, 45 Fla. 128, 34 So. 279; Copeland v. State, 41 Fla. 320, 26 So. 319.

“ ‘Intoxication does not excuse or' mitigate any degree of unlawful homicide, except murder in the first degree, unless, as a result of such intoxication, there be a fixed or settled frenzy or insanity either permanent or intermittent.’ Thomas v. State, 47 Fla. 99, 36 So. 161; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am.St.Rep. 232.” Cochran v. State, 65 Fla. 91, 61 So. 187, 190; Crews v. State, 143 Fla. 263, 196 So. 590.

There remains only a consideration of the evidence to determine if the insanity of the accused was a material issue. If there is any substantial evidence tending to show the insanity of the defendant at the time of the homicidal act, for which he is being tried, the issue should be submitted to the jury, and this is true even though the evidence of insanity is weak and there is apparently stronger evidence to the contrary. See State v. Newman, 57 Kan. 705, 47 P. 881; Stoner v. State, 100 Tex.Cr.R. 16, 271 S.W. 616; 23 C.J.S. Criminal Law § 1200 (1940); Smoot, Insanity § 504 (1929); 4 Warren, Homicide § 321 (Per.Ed.1938).

The judgment of the trial court that there was insufficient evidence of insanity to require a charge on that issue was certainly substantiated by the opinion evidence of the court appointed psychiatrists. However this opinion evidence was presented by the state in order to rebut the evidence of the defendant, which tended in some degree to raise the issue of insanity. We find from a close examination of the record that the defendant presented sufficient evidence to raise the issue of insanity.

The refusal by the trial court to give the defendant’s requested charge No. 7 was error.

The judgment is reversed, and a new trial awarded.

CARROLL, C. J., and HORTON, J., concur.


text:
    James V. LOPEZ and Charles A. Lopez, minors, by their next friend and guardian, W. O. Mehrtens, Petitioners, v. Rafael W. LOPEZ, as Executor of the Estate of Joseph Anthony Lopez, Jr., deceased, et al., Respondents. Joseph Anthony LOPEZ III, Petitioner, v. Rafael W. LOPEZ, as Executor of the Estate of Joseph Anthony Lopez, Jr., deceased, et al., Respondents.
    Supreme Court of Florida.
    July 10, 1957.

      W. O. Mehrtens and Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for petitioners.
    Mitchell, Smith & Mitchell, Atlanta, Ga., for respondents.
    Anderson & Nadeau, Miami, for inter-venor.
   O’CONNELL, Justice.

The petitioners seek review of an order if the chancellor requiring them to make an election between taking the benefits of the will of their father, deceased, or prosecuting certain claims against their father’s estate.

The petitioners are the three sons of Holies H. Lopez and Joseph Anthony Lopez, Jr. The latter is the testator of the will involved herein. Both parents of the petitioners are deceased.

The petitioners’ parents were divorced in April 1952, and shortly thereafter the testator married Dorothy N. Lopez, the respondent herein. On October 28, 1953 the father died.

For simplicity we will hereafter refer to the petitioners as “the sons”, the respondent as “the widow” and the testator as “the father”.

At the time these actions were commenced the sons were minors, however one son’s disabilities of non-age had been removed by marriage. This last mentioned son brought his action in his own name, the other two sons brought their suit through their legal guardian. The two actions were against Rafael W. Lopez, as Executor of the father’s estate. Both actions sought an accounting of dividends from stocks and rents from real property belonging to them, but which had been collected by their father during his life and commingled with his own assets. The cases were consolidated for trial.

The will of the father was admitted to probate in Dade County. Thereafter the sons filed their claims in the sum of approximately $400,000. The executor objected to the claims and these suits for accounting followed.

The widow petitioned for leave to intervene alleging that she had elected to take dower and that the result of these actions would materially affect her dower. She was allowed to intervene as was a bank, a general creditor of the estate.

After filing her answer the widow filed a motion to require the petitioners to elect between taking under the provisions of their father’s will, and in maintaining their action for accounting. The chancellor granted this motion and in doing so said:

"* * * Plaintiffs’ claim equals substantially the entire amount of the net estate. Plaintiffs’ claim against the estate is not as a general creditor, but is a claim that the property of the estate is their property. That is the effect of their trust claim, because through it plaintiffs seek to have assets of the estate allocated to them ahead of creditors and not subject to the widow’s dower. That, coupled with the disposition intent shown by the will, brings the case within the rule requiring election. * * *”

In their complaints the sons allege that they have since 1941 each owned stock in a Puerto Rican corporation, and have since 1944 each owned an undivided % interest in certain income producing real property in Dade County.

It further appears that prior to the spring of 1952 the father had acted as the natural guardian of the sons; that he was then appointed as the legal guardian of the sons in the County Judge’s Court of Indian River County, Florida, and that he had, as guardian, collected rents and dividends due the sons. It is alleged that no accounting of any kind was ever made by the father of the sons’ affairs as handled by him, either as natural or legal guardian. It is charged that the father commingled, with his own assets, the trust funds received by him as natural and legal guardian for the sons.

The sons claim that there is due them approximately $400,000 less any sums which the father may have expended for their benefit from said funds. They seek to have the court declare their right to payment of these sums, as trust funds, to be superior to any claims of general creditors and superior to the widow’s claim for dower, and ask that the executor be required to pay to them the sums found to be due in an accounting.

An affidavit made by an attorney for the executor shows that, using figures taken from the estate tax return, the gross estate is valued at approximately $848,000; that if the sons’ claims are not given priority the widow’s dower would amount to approximately $282,000, and the general creditors, including the sons, would receive 50.3% of their claims; and that if the sons’ claims are preferred the widow would receive only approximately $149,000 and the general creditors only 41.7% of their claims. These figures presuppose that the sons will recover the full amount of their claims of approximately $400,000.

In the will of the father he provided among other things:

(1) That all of his just debts be paid as soon as practicable; with all inheritance taxes to be paid from his residuary estate;

(2) Devised to Dorothy N. Lopez, the widow, “All of my jewelry, wearing apparel, automobiles, household furnishings, cash, bank accounts wherever situated and all property situated and located within the boundaries of the United States proper * * * and also including shares of stock and securities issued by any corporation organized under the laws of any State of the United States. * * * ”

(3) Devised the residue of his estate, expressly including all real estate in Puerto Rico and all stock and securities issued by corporations organized under Puerto Rican law to his three sons, share and share alike.

The widow contends that the provisions of the will relating to her are specific bequests and that the testator clearly intended tliat she receive jthe items given her free of all claims. This contention seems to be out of place since the widow has, as she had the right to do, elected not to take under the will but to take dower instead.

However, insofar as we are able to determine, the principal contention of the widow is that the claim of the sons is plainly adverse to the terms of the will and to the estate and they should be required to elect whether they wish to take under or against it.

It appears to us that the question to be answered is whether the devise to the sons by the father was intended to be in satisfaction of any claims which the sons might have against the father’s estate. If it was so intended an election is required, but none is required if there was no such intention.

The doctrine of election in connection with testamentary instruments is the principle that one who is given a benefit under a will must choose between accepting such benefit and asserting some claim which he has against the testator’s estate .or against the property disposed of by the will. 57 Am.Jur., Wills, Sec. 1526.

Redfearn on Wills and Administration .of Estates in Florida (1933), Sec. 148, describes the doctrine as follows:

“Election is an equitable doctrine in -relation to wills which means a choice •of one of two rights or claims, to each •one of which the legatee or devisee choosing has an equal right, but both ■of which-he cannot enjoy on account of an expressed intention on the part of the testator that he should not enjoy both.”

In First National Bank of St. Petersburg ■v. MacDonald, 1930, 100 Fla. 675, 130 So. 596, 599, this Court said concerning this .doctrine:

“* * * It has reference to the obligation imposed on a party to choose between two inconsistent or alternative rights or claims, in cases where there •is a clear intention of the person from •whom he derives one, that he should not enjoy both. The doctrine of election presupposes a plurality of gifts or rights, with an intention, expressed or ■implied, of the party who has a right •to control one or both, that one should be a substitute for the other * * .(Emphasis ours.)

We find nothing in the will involved here which indicates either expressly or impliedly that the father intended that the provisions of his will were to be in lieu of or in satisfaction of any claims which the sons might have against his estate for the trust funds which he allegedly commingled. Had he so intended, a few simple words would have made his intention apparent and decisive.

The widow argues that the testator by leaving her specific bequests and by directing that her bequests be free of inheritance taxes evidenced an intent that the claims of the sons, if any, would not affect her bequests. But this intent does not affect the question involved here which is whether the father by making his sons residuary legatees intended that such legacies were to be in satisfaction of any claims they might have against his estate.

We must, since we find no express or implied intent in the will, look to the general rule of law applicable here which is that a legacy to a creditor of the testator, which legacy is equal to or greater in amount than the indebtedness due the creditor will be presumed to have been intended as a satisfaction of the debt. 57 Am.Jur., Wills, Sec. 1574. Atkinson on Wills, Sec. 138 (2nd ed. 1953). Also see cases cited in 1932, 86 A.L.R. 6. Where this rule is held to apply the legatee-creditor is required to make an election between prosecuting his claim against the estate or taking under the will.

Although the above-mentioned rule is well established and is of considerable age, the presumption which it invokes is regarded by most courts with considerable disfavor. Because of its disfavor the courts have utilized very slight circumstances to take a case from under its operation.

In Atkinson on Wills, supra, pages 769-770, the author has this to say regarding this rule:

“This rule has been criticized, and it is subject to a number of qualifica-
tions or exceptions. For example, it has been held that there is no such presumption when the testamentary-provision is given for another express purpose, or is contingent, or is of specific chattels, or realty, or if there is a general direction for the payment of debts, or where the indebtedness is unliquidated, or incurred after the execution of the will, or is smaller than the debt * * *. In all these ways the courts have undermined the general doctrine; and it has even been stated that the modern rule is that it should appear from the will that the legacy was intended as satisfaction of the debt and that no presumption to that effect should be indulged. Of course, if the legacy is not deemed in satisfaction of the debt, the creditor-legatee may insist upon both and is not required to elect.” (Emphasis supplied.)

In 57 Am.Jur., Wills, Sec. 1575, at page 1077, exceptions to the rule are set forth to include situations where:

(1) the legacy and debt are of different nature;

(2) the will contains an express direction for the payment of the testator’s “debts”, or his “debts and legacies”;

(3) the debt is unliquidated;

(4) the debt is owed by the testator in a trust or representative capacity.

Considering the cases cited in 1932, 86 A.L.R. 6 and a more recent annotation on the same subject in 1955, 47 A.L.R.2d 1140 it appears that the rule, although not re-, pudiated, is given so little effect in practice that reliance cannot safely be placed thereon.

The modern rule appears to us to be more just and reasonable. It is that no presumption is indulged that a legacy is in satisfaction of an indebtedness due the legatee and that it must appear from the will that it was the intention of the testator that it should so operate. Under this modern rule the many exceptions which the courts have made to the general rule are not necessary.

The general rule was based on the presumption that a man intended to be just, i. e., to pay his debt to the legatee, before being generous in giving a gift to the creditor and allowing him to collect his debt also.

The modern rule is based on the common sense approach that a testator best knows his intention and if he intends satisfaction of a debt by a legacy, he should and can easily so state such to be the case. Young v. McKinnie, 1854, 5 Fla. 542, a case involving election, although not specifically in point, is indication of a preference for the modern rule that the intention of the testator must be found in the will itself. This Court said in effect that the intention of a testator to dispose of property not his own, thereby imposing upon the legatee the obligation to elect, must be expressed or clearly implied in the will itself.

While we do by this Opinion adopt the modern rule as above stated, the sons should not be required to elect even under several of the well established exceptions to the older general rule first mentioned.

There is no such similarity between the stocks and securities of Puerto Rican companies and real estate in Puerto Rico as willed to the sons and the debt claimed, which was in money, as would operate to raise a presumption that the testator intended such legacy to be in satisfaction of the claim. This case then falls within the exception that where the legacy and the debt are of different nature the presumption does not arise.

The will of the testator contains the specific direction for the payment of his debts, and this case can therefore be considered as coming within that exception. No one knew better than the testator whether he-was indebted to his sons and had he not: intended any debt to them to be paid he could easily have exempted such debt in his direction that all debts be paid.

The claims of the sons are unliquidated. The amount which the father received from dividends and rentals as reduced by the amounts which he expended for the benefit of the sons can only be determined after an accounting. It may well be as contended by the executor in his answer that the father utilized all, or a major portion, of the dividends from the stock of the sons to reduce an indebtedness owed by the sons thereon, and that he gave the rental income in question, or a major portion thereof, to the mother of the sons to be used for the care, benefit and support of said minors. The reason for this situation being made an exception to the general rule becomes obvious in this case.

The general rule only operates where the legacy is as great or greater than the debt owed by the testator to the legatee. The sons admit that they do not know how much they are owed by the estate. The exact amount cannot be ascertained until the accounting is had. Nor does it appear in the record before us that the value of the legacy to the sons has been determined. In view of this it cannot be said that the legacy equals or exceeds the debt. It would be most inequitable to require the sons to take the gamble of buying the pig-in-a-poke represented by their unliquidated claims in lieu of their inheritance under the will. An election should only be required to be made, under any circumstances, where the elector has the opportunity of full knowledge of the things between which he must choose. In this instance the sons will not know the value of their claim until the accounting prayed for is had. There is little question that this case falls within that exception to the general rule which prevails when the claim of the legatee is unliquidated. Glover v. Patten, 1897, 165 U.S. 394, 17 S.Ct. 411, 41 L.Ed. 760; Van Riper v. Van Riper, 1838, 2 N.J.Eq. 1; and Buckner’s Adm’r v. Martin, 1914, 158 Ky. 522, 165 S.W. 665, L.R.A.1915B, 1156.

The last exception to be discussed is that one which applies where the debt is owed by the testator in a trust or representative capacity. It appears to us that this case is within -this exception also.

There is no question from the record before us that the claims of the sons are based solely on the allegations that the father, while acting in a fiduciary relationship of natural and then as legal guardian, received funds belonging to the sons and converted them to his own use.

It is well established that where a debt is owed by the testator in a trust capacity, as in this case, a legacy to a creditor does not raise the presumption that the legacy is in satisfaction of the debt, and the creditor is not required to make an election between the devise and pursuit of his claim against the estate. Rucker v. Maddox, 1902, 114 Ga. 899, 41 S.E. 68; Walker v. Walker’s Ex’r, 1869, 9 Wall. 743, 19 L.Ed. 814; Buckner’s Adm’r v. Martin, 1914, 158 Ky. 522, 165 S.W. 665, L.R.A. 1915B, 1156; In re Chaconas’ Estate, D.C. 1948, 80 F.Supp. 549; Orr v. St. Louis Union Trust Co., 1922, 291 Mo. 383, 236 S.W. 642; In re Klein, 1913, 80 Misc. 377, 142 N.Y.S. 557; Fetrow v. Krause, 1895, 61 Ill.App. 238; Van Riper v. Van Riper, 2 N.J.Eq. 1; Thompson v. Wilson, 1898, 82 Ill.App. 29. See cases cited in 86 A.L.R. 6 and 47 A.L.R.2d 1140.

This exception is in accord with the universal rule followed by this Cottrt, that trust property does not, on the death of the trustee, become assets of his estate; that claims against the testator for trust assets are preferred claims and that trust property held by the trustee on his death cannot be charged with the debts of the decedent. Rackley v. Mathews, 1940, 141 Fla. 307, 193 So. 69; Pyle v. Pyle, Fla.1951, 53 So.2d 312; Bourne v. State Bank of Orlando & Trust Co., 1932, 106 Fla. 46, 142 So. 810.

Nor can we see how the widow or the creditors of the estate of the father can rightfully complain if the executor he required to do that which the father should have done, i. e. pay to the sons any sums received by him as their guardian. The widow and creditors are entitled to share only in the assets of the father, not in the proceeds of the dividends and rents belonging to the sons.

The widow contends that if the father was cognizant of any claim of the children in his assets he then must by his will have intended to convey property not wholly his own, but belonging in part to his children.

There is a principle of law that one who receives a benefit under a will by which the testator attempts to dispose of property which belongs to such beneficiary, or in which the latter has some right, claim or interest, must elect between his right to accept the benefits of the will and his right to assert his independent paramount title. 57 Am.Jur., Wills, Sec. 1555. Redfearn on Wills and Administration of Estates in Florida, Sec. 154, 2nd ed. 1946.

The chancellor apparently agreed with this contention of the widow for in his order requiring an election he said:

“Plaintiff’s claim against the estate is not as a general creditor, but is a claim that the property of the estate is their property.”

We do not construe the claims of the sons to be that the property of the estate is theirs. Their claim is not that specific property of the estate is theirs, but only that the estate of the father be required to account to them for the sums wrongfully converted by the father and that the assets of his estate be first utilized to satisfying these sums due them.

Had the father attempted to will to the widow the stock in the Puerto Rican corporation and the real property in Dade County which is owned by the sons and, as he did, named the sons as residuary legatees in the will, then the sons might be put to an election of taking under the will and allowing the widow to have their stock and real estate or refusing to take under the will and asserting their ownership of the stock and real estate.

In any event, however, since the intention of the testator to dispose of property not his own is not expressed or clearly implied in the will, the sons should not be required to elect on the basis of the decision of this Court in Young v. McKinnie, supra.

The widow urges that this case is controlled by the case of Hyatt v. Vanneck, 1896, 82 Md. 465, 33 A. 972. In that case a father with his daughter’s consent sold certain lands in which he had a life estate and his daughter had a remainder interest. Of the $25,000 received from the sale, he used approximately $6,000 for satisfying debts and making repairs on property solely his and invested approximately $18,-000 in five ground rents and bonds, taking such in his name. The father remarried and made a new will in which he specifically devised the five ground rents above-mentioned to the daughter, made specific bequests to the widow and daughter, and left the residue to his widow and daughter in equal shares. On the father’s death the daughter sued the estate for $19,000, the amount remaining unaccounted for from the proceeds of the lands in which she had had a remainder interest. The court found that the will of the father specifically devised to the daughter the five ground rents and one half of the residue of the estate in both of which the father knew she had an interest, and that this was evidence of intent of the father that the daughter should take nothing more from his estate than provided for her in the will. The daughter was required to elect between prosecuting her claim or taking under the will.

The Hyatt case is easily distinguishable from the case at bar. There is nothing in the will in the case before us to indicate that the father attempted or intended to dispose of by his will specific assets held by him as guardian of the sons, or that he intended to convey to the sons property in which they already owned an interest, so as to require them to elect either to rely on their own claim of ownership or take under the will. Both of these factors were present in the Hyatt case.

The widow argues that this is not a case where the testator owes an existing debt to a legatee, but rather involves the question of an election between accepting a bequest and pursuing an adverse claim. We have not overlooked this argument, but we are of the opinion that the claim of the sons is for an indebtedness and not an adverse claim of title to specific property devised in the will.

The sons advance other arguments upon which they rely in seeking issuance of the writ, but we do not feel it necessary to discuss them in view of our decision.

We have decided in this opinion that this case involves the doctrine of election as applied to the situation in which a testator leaves a legacy to a creditor, and that the so-called “modern rule” on the doctrine of election, as it is involved here, is more reasonable and just than the general rule. We will follow it in this Court.

We have decided that in the case before us that there appears no intent in the will of the father that the legacy to his .sons was given in satisfaction of their claims so as to require an election by them.

Furthermore, in order to answer the widow’s contentions we have also considered this case under the application of the general rule whereunder a presumption arises that a legacy to a creditor is in satisfaction of a debt if the legacy is as great or greater than the debt.

We have concluded that this case is removed from application of the general rule under the exceptions thereto as above stated.

The petition for certiorari is granted. The order requiring election is quashed and the cause is remanded for further proceedings consistent herewith.

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


text:
    G. C. ELDRIDGE and Wife, Georgia Eldridge, Appellants, v. Joseph H. ODENATH et al., Appellees.
    Supreme Court of Florida.
    July 17, 1957.
   PER CURIAM.

Affirmed.


text:
    John C. PROFFITT, Appellant, v. A. Barton WHITE, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
   PER CURIAM.

Affirmed.


text:
    Hazel W. WATSON, a single woman, Appellant, v. Gregory GALLAGHER, Sr., et al., Appellees.
    No. 57-15.
    District Court of Appeal of Florida. Third District.
    Rehearing Denied Aug. 13, 1957.
    July 22, 1957.
    William Kaczaraba, Miami, for appellant.
    J.Thomas Brown, Richard B. Berg-stresser, and John E. Wilcox, Miami, for appellees.
   PER CURIAM.

This is an appeal from a final decree granting enforcement of a mechanic’s lien on property of appellant.

The appellee, as plaintiff in the Circuit Court, sued claiming $556.47 was due him as wages for his labor in improving appellant’s property, and to secure its payment through lien foreclosure.

Appellant, as defendant, answered denying the claim, and counterclaimed for $367 for alleged defective workmanship.

The suit was tried before the Chancellor, who found that the equities were with the plaintiff, decreed that the sum he claimed for wages was due him and ordered foreclosure enforcement of his lien therefor.

Our study of the record, including the testimony presented at the trial, shows that the Chancellor reached his decision on conflicting testimony, and that there was ample * evidence before him to prompt and sustain his decree.

It was within the province of the trier of the facts to resolve the conflicts in the evidence, and this court will not disturb a finding where there is substantial evidence supporting it.

Accordingly, the decree appealed from is affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


author: PONDER, Justice. HAMITER, Justice.

text:
    233 La. 159
    NATIONAL DEPARTMENT STORES CORPORATION v. HOUSE OF FASHION, Inc.
    No. 43115.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    On Rehearing June 10, 1957.
    Dwight, Royall, Harris, Koegel & Caskey, New York City, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for plaintiff-appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellee.
   PONDER, Justice.

After listening to the arguments advanced herein, a study of the briefs in support of the appeal, and a review of the record in the case, we have arrived at the conclusion that the trial judge in his written opinion has correctly stated the facts and applied the law applicable to the case, and therefore, we have decided to adopt the opinion of the trial judge as the opinion of this Court, which is as follows:

“This is a suit on a promissory note in the amount of $116,854, made and executed by defendant, dated August 17, 1955, payable to plaintiff, or order, on January 31, 1956, with interest. To plaintiff’s suit defendant has filed an exception of prematurity. At the hearing on the exception evidence was offered by agreement of counsel for both parties.

“On August 17, 1955, The Rosenfield Dry Goods Company, Limited, plaintiffs wholly owned subsidiary, sold to defendant its assets, this sale being evidenced by a written contract, a photostatic copy of which has been offered in evidence and identified as ‘Exceptor 4’. The note here sued on was given in part payment of the purchase price of the assets in question (See 4 — c of the contract of sale), and represented the balance of the purchase price after a cash payment (4-a), and the assumption by defendant of certain liabilities of Rosenfield (4-b), and was the exact amount of Rosen-field’s liability to plaintiff.

“In paragraph 1 of the contract it is provided:

“ ‘Annexed hereto, marked Exhibit A, is a balance sheet showing the assets and liabilities of Rosenfield as at July 31, 1955. Rosenfield represents and warrants * * * that its' balance sheet, annexed hereto as Exhibit A, is substantially correct * * *.

“The balance sheet so referred to is designated as ‘Unaudited Estimate balance sheet as at July 31, 1955.’ This balance sheet formed the basis for the sale, the parties thereby determining the assets purchased and the liabilities assumed by defendant, all subject to the provisions of paragraph 9 of the contract, which reads:

“ ‘9. Fashion may, at its option and at its own expense, cause a firm of certified public accountants of its own selection (hereinafter called the “Auditors”), to make, on or before January 1, 1956, a complete balance sheet audit of Rosenfield as at July 31, 1955, for the purpose of verifying whether or not the assets sold and purchased hereunder and the liabilities assumed by Fashion hereunder are correctly stated in Rosenfield’s balance sheet annexed hereto as Exhibit A. If the Auditors find that the annexed balance sheet does not correctly state the amount of any such assets or liabilities, the Auditors shall promptly inform Rosenfield’s accountants, Price, Water-house & Company, of any claimed discrepancies therein. To the extent that Price, Waterhouse & Company agrees-that said balance sheet annexed hereto as Exhibit A, does not correctly state the amount of any such assets or liabilities, the parties agree that the purchase price hereunder shall be adjusted accordingly. In the event that Price, Waterhouse & Company does not agree with any of the claimed discrepancies reported to it by the Auditors, the same shall be referred to such independent firm of certified public accountants as the Auditors and Price, Waterhouse & Company may select by mutual agreement. The determination of said independent firm as to all claimed discrepancies referred to it shall be final and binding upon both parties hereto and to the extent that said independent firm finds that the balance sheet annexed hereto as Exhibit A does not correctly state the amount of any such assets or liabilities (with respect only to matters referred to said firm), the purchase price hereunder shall be further adjusted accordingly. In no event shall the total of all such adjustments result in any increase in the total purchase price over that specified in Paragraph 2 hereof. The Auditors and any such independent firm shall be furnished with a copy of this Agreement. The expense of retaining said independent firm shall be divided equally between the parties hereto. The amount of any price adjustment resulting from the foregoing shall be due and payable on January 31, 1956, and Rosenfield hereby consents that any amounts owing to Fashion arising from such adjustment may be deducted by Fashion from the amount due and owing by it to National Department Stores Corporation on said day, and agrees to hold Fashion harmless against any claims by said National Department Stores Corporation for failure to- pay the same to the extent of such price adjustment.’

“Simultaneously with the execution of the contract of sale and the note here sued on, plaintiff delivered to defendant a letter, a photostatic copy of which is filed in evidence as ‘Exceptor 5’, and second and third paragraphs of which provide:

“ ‘2. We hereby agree to indemnify you and any person, firm or corporation to which any portion of the Rosenfield assets is conveyed at your request and which is associated with you in the •operation of the business heretofore ■conducted by Rosenfield against any loss resulting from any failure by Rosenfield to fully perform all its agreements and covenants set forth in its said agreement with you dated this day, or from any misrepresentation or breach of warranty contained in its said agreement or from any liability, contingent or otherwise, known or unknown, not shown in the balance sheet of Rosenfield annexed to its said agreement, or from any liability incurred by Rosenfield after July 31, 1955 and prior to the date hereof not in the ordinary course of business.
“ ‘3. Any adjustment of the purchase price of the assets purchased by you from Rosenfield Dry Goods Company, Limited, in accordance with said agreement may be deducted by you from the amount due and owing to us on January 31, 1956, pursuant to the terms of your promissory note payable to us on that date.

“The evidence shows that defendant retained L. A. Champagne and Company, Certified Public Accountants, to make an audit of Rosenfield’s balance sheet as at July 31, 1955, as' provided by paragraph 9 of the contract of sale; that Champagne made such audit and furnished a copy thereof to Price, Waterhouse and Company on December 29, 1955; that said audit showed total claimed discrepancies in the amount of $49,422.82; and that neither Price, Waterhouse and Company nor plaintiff has taken any action in connection therewith.

“The undisputed portion of the note here sued on has been paid by defendant and accepted by plaintiff without prejudice to the rights of either party, leaving in dispute only the sum of $49,422.82, the amount of the total claimed discrepancies as shown by Champagne’s audit, with interest. It is defendant’s contention that plaintiff’s suit as to this amount is premature until there has been a compliance on the part of plaintiff and its auditors with the provisions of paragraph 9 of the contract of sale.

“Plaintiff first contends in effect that the claimed discrepancies cannot be allowed for the reason that the contract of sale shows on its face that certain assets were sold at less than their book value and that the obvious purpose of this reduction was to take care of just such discrepancies as defendant’s auditor has reported. Particular reference is made to the reduction of $50,000 on the item of accounts and notes receivable, which plaintiff says was to take care of bad debts, and the reduction of $80,000 on the item of merchandise inventories, which plaintiff says was to take care of obsolete and depreciated merchandise. Plaintiff is doubtless correct on both points. However, it must be remembered that in each instance the reduction was made on a figure reflected by Rosenfield’s balance sheet, which it warranted to be substantially correct, and which was subject to audit under the provisions of paragraph 9 of the contract. The same situation prevails with reference to other similar points raised in plaintiff’s argument. In my opinion the fact that the contract shows certain reductions or discounts were given does not in any manner affect the provisions of paragraph 9 thereof.

“Plaintiff next contends that Champagne’s audit is a detailed audit instead of a balance sheet audit as contemplated by the contract, hence no obligation exists on its part or on the part of its auditors in connection therewith. Plaintiff cites the case of Ronaldson v. Moss Watkins, Inc. [13 La.App. 350], 127 So. 467 [470], Court of Appeal, First Circuit, wherein the court distinguished a balance sheet audit from a detailed audit, saying:

“ ‘That in making a “balance sheet audit” all the accountant is expected to do is to strike a general balance of the assets and liabilities of the business as reflected from the inventories, the books, bank and other accounts kept by the regular officers and employees of that business, all of which he assumes to be correct. It differs from the detailed audit in this: That the latter requires him to make his own independent investigation into the physical property and assets as well as all papers, books, accounts, etc., of the business. In making a detailed audit, the auditor takes nothing for granted.’

"The Ronaldson case is the only case cited on this point in such widely recognized works as Words and Phrases and Corpus Juris Secundum. In American Jurisprudence, ' another widely recognized work, the question does not appear to be discussed.

“The audit referred to in paragraph 9 of the contract is designated as ‘a complete balance sheet audit’. It is authorized to be made ‘for the purpose of verifying whether or not the assets sold and purchased hereunder are correctly stated in Rosenfield’s balance sheet’.

“Obviously this is not a mere ‘balance sheet audit’ as defined in the Ronaldson case, but is a ‘detailed audit’ as there defined, as evidenced by the stated purpose of the audit.

“The parties to the contract here involved undoubtedly realized the importance of providing the machinery whereby it might be determined ‘whether or not the assets sold and purchased (under the contract) and the liabilities assumed by Fashion (under the contract) are correctly stated in Rosenfield’s balance sheet’. Until this machinery his functioned as provided by the contract, it is my opinion that this action is premature.

“For these reasons the exception of prematurity filed by defendant herein is maintained, and plaintiff’s suit is dismissed.”

For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost.

On Rehearing

HAMITER, Justice.

The facts of this cause, as weli as the events leading up to the filing of the suit, are fully and accurately set forth in the opinion originally handed down by this court. That opinion discloses also that the questions presented by defendant’s plea of prematurity, which was sustained by the district court, are: (1) what type of audit did the parties to the instant contract contemplate when, by the language of paragraph 9, they provided for a “complete balance sheet audit” and (2) did the audit as made by L. A. Champagne and Company for the defendant constitute the audit intended by such language ?

After further considering the provisions of the written contract we cannot say with any degree of certainty just what type of audit was contemplated when reference was made to a “complete balance sheet audit * * * for the purpose of verifying whether or not the assets sold and purchased hereunder and the liabilities assumed by Fashion hereunder are correctly stated in Rosenfield’s balance sheet * * Nor do we find any other clause in the agreement which might explain the ambiguity. Consequently, it is proper and necessary to examine extrinsic evidence in order to determine the true intention of the parties. Gulf Refining Company v. Garrett, 209 La. 674, 25 So.2d 329 (and the cases cited therein) and Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367.

Incidentally, in Ronaldson v. Moss Watkins, Inc., 13 La.App. 350, 127 So. 467, 470 (discussed in the original opinion herein) a distinction was drawn, based wholly upon testimony given by experts in the field of accounting, between a mere “balance sheet audit” and a “detailed or complete audit”. Also the court, after recognizing such a difference, concluded from the testimony adduced that by the terms of the contract the interested parties contemplated only a balance sheet audit.

In the instant case, however, there was no testimony adduced on the hearing of the sustained plea of prematurity from which we might resolve the ambiguity of the contract under consideration; nor was there any evidence disclosing the method by which L. A. Champagne and Company made its audit for the defendant. This being true we are not now in a position to determine whether the discrepancies designated in such prepared audit were intended to be the subject of arbitration under the terms of the contract.

Under these circumstances we find it necessary to refer the plea of prematurity to the merits and to remand the cause for trial, it to include the introduction of evidence for the purpose of showing the type of audit contemplated by paragraph 9 of the contract and whether the audit made by L. A. Champagne and Company was in keeping with the intendment of the parties. If after trial the district court concludes that such prepared audit was of the,type contemplated then the plea of prematurity can and must be sustained and the parties required to arbitrate in accordance with their contractural obligations. If that conclusion is not reached the court shall render such judgment on the merits as the law and the evidence warrant.

For the reasons assigned the judgment appealed from is annulled and set aside, the plea of prematurity is referred to the merits, and the case is remanded for further proceedings according to law and consistent with the views herein expressed. Appel-lee shall pay the costs of this appeal, and all other costs shall await the final determination of the litigation.

PONDER, J., dissents.


author: PONDER, Justice.

text:
    233 La. 171
    Bill FLATTE, doing business as Bill Flatte Motor Company, v. Curtis J. NICHOLS, doing business as Nichols Motor Company.
    No. 42692.
    Supreme Court of Louisiana.
    June 10, 1957.

      Ogden & Woods, Charlton B. Ogden, II, New Orleans, Sidney Lee, Texarkana, Tex., ■for plaintiff-appellant.
    Hayes, Harkey & Smith, Theus, Grisham, Davis & Leigh, Monroe, for defendant-ap-pellee.
   PONDER, Justice.

Plaintiff brought suit for the return of a 1951 Cadillac convertible, Motor No. .5162-99705, or judgment for its value being the sum of $4,375; with legal interest from judicial demand until paid. Plaintiff alleged that it is the owner of the automobile and that one Pat Murphy, through fraud .and misrepresentation, took possession of the automobile and thereafter sold it to the •defendant in Louisiana. Defendant answered alleging that the plantiff is estopped from demanding either the return of the car or the price thereof alleging that it was a bona fide purchaser in good faith. After trial on the merits, there was judgment dismissing the plaintiff’s suit on the ground that the defendant’s plea of estoppel was well founded in law and the plaintiff has appealed from this judgment.

The record shows that the automobile in question was purchased by W. A. Carley, a resident of Texas, on December 7, 1951 from Cargile Motor Company of Texar-kana, Arkansas, and Carley was given a manufacturer’s certificate. On the date of the purchase, Carley filed an application in Texas for a title certificate, attaching to the application the manufacturer’s certificate, and obtained a Texas automobile license. Because his wife was dissatisfied with the car, Carley, on December 14, 1951, sold or traded the car to the plaintiff, Flatte Motor Company, a dealer in Texas. Carley delivered to Bill Flatte, the owner of Flatte Motor Company, the receipt for the Texas license, these being the only muniments of title which Carley possessed on the car. On the same day, December 14, 1951, Bill Flatte sold the car to Pat Murphy, a dealer in Cleveland, Mississippi, with whom the plaintiff was acquainted and with whom he had previously done business. Plaintiff delivered the car personally to Murphy in Mississippi and gave Murphy the same title papers he had received from Carley and in addition the plaintiff gave Murphy an invoice-bill of sale signed by Ira Allen, bookkeeper of Bill Flatte Motor Company, which invoice was notarized by Bill Flatte himself. This invoice stated that the automobile was sold for the sum of $4,050 cash, and that there were no notes and conditioned sale contracts held by the motor company. In payment for the car, Murphy gave Flatte a check on the Bank of Cleveland, Mississippi and plaintiff company never determined if Murphy’s check was good. The Flatte Motor Company at the time of the sale to Murphy knew that Murphy was an automobile dealer in Mississippi and that the car would be resold.

On December 17, 1951 Murphy paid a Mississippi Road and Bridge Privilege Tax and obtained a 1952 Mississippi automobile license, there being no requirement in Mississippi that a title certificate be issued. On December 22, 1951 Murphy sold the Cadillac to Nichols Motor Company, defendant herein, and delivered to it all of the above listed documents of title which Carley had given to Flatte, the invoice signed by Flatte, and the muniments of title in Mississippi. At this time no title certificate had been issued by Texas as applied for by Carley but the defendant was informed by Murphy that same would be forwarded when issued. Nichols Motor Company, defendant herein, sold the car to a dealer in Bridgeport, Connecticut and from there it was finally sold to a man named Robertson in Pennsylvania.

Murphy’s check was deposited by Flatte in Texarkana on December 15, 1951 and payment was refused on December 22, 1951. Plaintiff contacted Murphy who told him to re-deposit the check which he did on December 26, 1951 and it was again refused for insufficient funds on January 3, 1952. It was not until January 10, 1952 that a title certificate was issued by the State of Texas and this certificate was delivered to Flatte.

The record shows that Flatte instituted proceedings in Pennsylvania against Robertson, then abandoned same. The present suit was then instituted by plaintiff against the defendant for the recovery of the car or the value thereof. No proceedings have ever been brought against Murphy, hence in this suit we are concerned only with the sale from Flatte Motor Company to Murphy and Murphy to Nichols Motor Company.

It is the contention of the plaintiff-appellant that title to the Cadillac did not pass and that since the defendant, a Louisiana dealer, did not obtain a certificate of title as required by Louisiana law, LSA-R.S. 32:705, it was not a purchaser in good faith. Appellant contends that the doctrine of es-toppel cannot be applied where there is positive law and that the provisions of the Civil Code pertaining to the sale of movables have been modified in so far as they affect the sale of motor vehicles by LSA-R.S. 32:705.

The defendant-appellee contends that the sale by Flatte to Murphy was a valid sale passing title and the documents of title and indicia of ownership which Flatte gave to Murphy, who in turn gave to defendant, were sufficient to make the defendant a purchaser in good faith and hence the plaintiff is estopped by its own actions to now claim that Murphy did not acquire title to the automobile in question.

The contention of plaintiff-appellant that the agreement between it and Murphy was a conditional sale conditioned upon the clearing of the check is contradicted by the invoice given by the plaintiff to Murphy which specifically stated that the sale was for “cash” and carried the notation “notes and conditioned sales contracts held by none.” It is clear from the decision of this court in Jeffrey Motor Company v. Higgins, 230 La. 857, 89 So.2d 369 that this was a credit sale and title passed. The court therein pointed out that under Article 2456 of the LSA-Civil Code the sale was complete when Jeffrey accepted the draft, which was given in that case, as there then existed an agreement for the object and for the price thereof. From this, the court stated, it followed that title passed and could then be transferred to another person.

Plaintiff-appellant relies upon the holding in the case of Packard Florida Motors Co. v. Malone, 208 La. 1058, 24 So.2d 75. An examination of that case shows that it is inapplicable herein as the car in that case was actually stolen. The Jeffrey case pointed out that the Packard case was inapplicable to a situation like the present one.

It is argued by the plaintiff-appellant that the Louisiana Motor Vehicle Title Certificate Law, LSA-R.S. 32:705, repeals, modifies and alters the basic provisions of Article 2456 of the LSA-Civil Code. This contention has been answered in Transportation Equipment Company v. Dabdoub, La.App., 69 So.2d 640 wherein it was clearly stated that LSA-R.S. 32:701 et seq. do not make the sale of a motor vehicle void if the transfer is not executed in conformity with the statute, but simply causes the title to be imperfect until the certificate is acquired, nor do the provisions of LSA-R.S. 32:701 et seq. directly or by implication repeal the provisions of Article 2456 of the LSA-Civil Code. The court stated that title to motor vehicles, although imperfect, may still be transferred in accordance with provisions of Article 2456 as between the parties even though the purchaser did not comply with LSA-R.S. 32:701. In Hammer v. Domingue, La.App., 82 So.2d 105 it was held that failure to comply with the administrative regulation of LSA-R.S. 32:705 does not invalidate the sales themselves but such failure only prevents a “marketable title” from being obtained until such time as the provisions of the statute are complied with but a valid title is perfected even before the purchaser obtains a title certificate. To the same effect are the cases of Nettles v. General Accident Fire & Life Assurance Corporation, 5 Cir., 234 F.2d 243; Bedsole v. Lee, La.App., 78 So.2d 434; Hammond Finance Co. v. Carter, La.App., 83 So.2d 682; H. G. Williams Motor Co. v. Zeagler, La.App., 92 So.2d 291.

Defendant-appellee pleads estop-pel invoking the principle that when one of two innocent persons must suffer loss, it must be borne by that one of them who by his conduct has rendered the injury possible.

In the instant case the plaintiff knew that Murphy was a dealer and would resell the automobile. Plaintiff gave to Murphy, without ascertaining if the check given by Murphy was good, the application for a title certificate filed in Texas by Carley, the Texas license papers, and an invoice-bill of sale stating that there were no conditioned sales contracts outstanding and that cash had been paid for the car. Thus plaintiff not only gave Murphy possession of the movable but clothed him with every possible indicium of ownership.

It is settled jurisprudence that where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed on him who most contributed to it. Thompson v. Hibernia Bank & Trust Co., 148 La. 57, 86 So. 652; Haley v. Woods, 163 La. 911, 113 So. 144; Young v. Gretna Trust and Savings Bank, 184 La. 872, 885, 168 So. 85, 90; Theard v. Gueringer, 115 La. 242, 38 So. 979, 981; Reed v. Eureka Homestead Society, La.App., 143 So. 891; Continental Jewelry Co. v. Weilbacher, 17 La.App. 420, 136 So. 110; Whittington Co. v. Louisiana Paper Co., 224 La. 357, 69 So.2d 372; Clark-Kelley Livestock Auction Co. v. Pioneer Bank & Trust Co., 228 La. 224, 81 So.2d 869.

The case of Jackson v. Waller, 190 Tenn. 588, 230 S.W.2d 1013 from the Supreme Court of Tennessee is almost identical to the case at bar. Therein the purchaser gave a check in payment and the seller gave possession of the car and a carbon copy of an order blank showing that the car had been purchased and paid for. This order blank was signed by the seller as in the instant case. The purchaser then took the car and sold it to another presenting the carbon copy of the order as evidence of his title. A plea of estoppel was upheld by the court saying that the loss was due to the seller’s negligence in arming another with a clear indicia of ownership. To the same effect is the case of Woods v. Thompson, 159 Fla. 112, 31 So.2d 62. In the Woods case the court pointed out that as between the parties the sale was voidable but considering the fact that the plaintiff gave his vendee an invoice reciting that there was no collateral agreement or understanding between the parties, then plaintiff would be estopped as against the defendant who was a bona fide purchaser.

The trial judge was correct in maintaining the plea of estoppel filed by the defendant.

For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost.