Florida Railway Co. v. Fox

Whitfield, J.

The -amended declaration filed hy Fox Bros. & Co. against the corporation contains a special count in assumpsit and also a common count for an account stated in $257.54 and interest. Pleas of never was indebted and never promised as alleged were filed. The following is certified by the judge to be all the evidence introduced in the trial:

“I am counsel for the plaintiff in this cause. This account was sent me by the plaintiff several months before I instituted suit. I presented this account to Mr. Frank Drew, President, Florida Railway Company, twice' before I brought suit. Mr. Drew looked over the items and said the account was all right. The account is for $257.24, but he said the company was- a little hard pressed at that time and asked me to wait on him a little while. That the account would be paid, and I did wait several months before bringing suit.

“I do not know whether Mr. Drew is President of Florida Railroad Company or not, except by general reputation. I have never seen the minutes of the company, but he has a general oversight and supervision down there. I do not know whether he is a Director or not. I do not know whether he looks after the buying for the company or not. Of course, I have not seen the minutes of the meeting and I do not know just what authority he has other than by general reputation. I do not know whether he is a stockholder or not, but I think he told me one time several years ago that he and Geo. Drew owned the Florida Railroad. I presented the statement to Mr. Drew here in toAvn. On one occasion I think down on the corner of Worth Stephens’ store. I did not present it to him in the office of the company.”

• At the conclusion of the testimony the court denied a motion for a directed verdict in favor of the defendant, and on motion of the plaintiffs directed a verdict for the plaintiffs to which the defendant excepted. The jury returned a verdict for the plaintiff for $257.24 and interest. Judgment Avas entered on the verdict and a motion for new trial having been denied, exception was noted and a Avrit of error Avas taken by the defendant.

There is no evidence whatever to sustain the first count of the declaration. While there is evidence that the account is for $257.24 no account was put in evidence. The Avitness testified that he “presented this account to Mr. Frank Drew, President, Florida Railway Company, twice before I brought suit. Mr. Drew looked over the items and said the account was all right.” The witness also testified that he did “not know whether Mr. Drew is President of Florida Railroad Company or not, except by general reputation.” “He has a general oversight and supervision down here.” “I do not knoAV Avhether he looks after the buying for the company or not.” “I do not know Avhat authority he has other than by general reputation.” “I presented the statement to Mr. Dmv here in toAvn. On one occasion I think down on the corner of Worth Stephens’ store. I did not present it to him in the office of the company.” Though the account was referred to, it does not appear to have been introduced in evidence as a basis for evidence that it was in fact and in law a stated account. See 1 Standard Ency. Pro. p. 252. There is no evidence of Mr. Drew’s actual or apparent authority to charge the company with the claim as an account stated. The testimony that “he has a general oversight and supervision down here,” does not fairly justify an inference that Mr. Drew was authorized to receive and adjust the account for the defendant company. See Missouri P. Ry. Co. v. Coombs, 71 Mo. App. 299; Jacksonville M. P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, 16 South. Rep. 898; Daytona Bridge Co. v. Bond, 47 Fla. 136.

There was material error in directing a verdict for the plaintiff, and such error affects substantial rights of the defendant.

The judgment is reversed.

Shackleford, C. J., and Taylor, Cockrell and Hock-er, J. J., concur.