JAS B. GIBSON, JR.,
v.
PAULINE LEHDE, A WIDOW
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The Florida Supreme Court affirmed an order granting a new trial in a case involving alleged accord and satisfaction of promissory notes. The trial court found insufficient evidence of the plaintiff's attorney's authority to bind the plaintiff and ruled that the alleged agreement was unenforceable for lack of consideration and compliance with the Statute of Frauds.
The order granting a new trial was affirmed. The alleged accord and satisfaction agreement was unenforceable because it lacked the plaintiff's attorney's express authority, lacked consideration, contemplated a conveyance of real estate without being in writing, and thus violated the Statute of Frauds.
“If either ground on which order granting new trial is based finds substantial support in the record the same will not be disturbed on appeal.”
Establishes the appellate standard of review for new trial orders - if any single ground is supported by the record, the order will not be reversed.
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Join FLexlaw to unlock all legal intelligenceThe case involved disputed promissory notes where the defendant claimed an accord and satisfaction agreement had been reached through negotiations wit…
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The writ of error brings for review an order granting a new trial.
The order granting new trial was as follows:
“It is thereupon Ordered and Adjudged that the. plaintiff’s motion for a new trial be and is hereby granted and the said verdict set aside, and the plaintiff is granted a new trial for the reasons, to-wit:
“1. That the evidence does not sustain the verdict..
“(a) There is no testimony to show that the plaintiff’s attorney had express authority to make the agreement claimed by the defendant.
“(b) There is no testimony to show that the plaintiff ratified the agreement claimed to have been made by the defendant with the plaintiff’s attorney.
“2. That the ratification relied upon .by the defendant at the trial of the said cause was not specially pleaded.
“3. That it was error to have admitted in evidence the testimony offered by the defendant relative to his general reputation for truth and veracity.
“The defendant’s motion to amend judgment nunc pro tunc and motion to strike the name of Peyton T. Jordan as attorney for the plaintiff be and are each denied.”
If either ground on which order granting new trial is based finds substantial support in the record the same will not be disturbed on appeal. An order granting a new trial will not be reversed where no abuse- of sound discretion in granting same is made to appear. See Ziegler v. Erler *705Corp., 102 Fla. 981, 136 Sou. Rep. 718. This rule is applicable where there is a conflict in evidence. Woods v. Atlantic Coast Line Ry. Co., 100 Fla. 909, 130 Sou. Rep. 601.
The record at most shows only an agreement for accord and satisfaction of the notes sued on, which alleged agreement was 'without consideration, contemplated the conveyance of real estate and was not in writing and for these reasons were not enforceable in law or equity.
It therefore follows that the order granting new trial should be affirmed.
It is so ordered.
Ellis, C. J., and Terrell, Brown and Buford, J. J., concur.
Mr. Justice Davis wrote the’following specially concurring opinion in this case.
(especially concurring). — I agree that the third ground of the motion for a new trial was well taken so I concur in affirming the order setting aside the verdict on that ground. Further than this I am not prepared to go at this time.
Where a trial judge is impressed with the idea that inadmissible, or material but unimportant, evidence of a collateral character has been admitted and has unduly influenced a verdict for one party he may exercise a sound discretion to grant a new trial in order that the case may be retried under circumstances not leaving the basis for the jury’s verdict in doubt as to the soundness of its foundation.
Davis, J.
(especially concurring). — I agree that the third ground of the motion for a new trial was well taken so I concur in affirming the order setting aside the verdict on that ground. Further than this I am not prepared to go at this time.
Where a trial judge is impressed with the idea that inadmissible, or material but unimportant, evidence of a collateral character has been admitted and has unduly influenced a verdict for one party he may exercise a sound discretion to grant a new trial in order that the case may be retried under circumstances not leaving the basis for the jury’s verdict in doubt as to the soundness of its foundation.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kight v. Am. Eagle Fire Ins. Co. of N.Y., 131 Fla. 764 (Fla. 1938)…t has held when considering several grounds of a motion for a new trial, if either ground thereof finds substantial support in the record, the said order granting a new trial will not be disturbed on writ of error to this Court. See Gibson v. Lehde, 128 Fla. 703, 175 Sou. 726. Likewise it has been held, even where there is a conflict in the evidence, the order granting a new trial will not be disturbed in the absence of abuse of discretion and violation of settled law. See Woods v. A. C. L. R. R. Co., 100 F…
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Fla. Coastal Theatres, Inc. v. Belflower, 159 Fla. 741 (Fla. 1947)…order granting a new trial it must clearly appear that there has been an abuse of sound judicial discretion. Tidewater Const. Co. v. Monroe County, 107 Fla. 648, 146 So. 209; Miami v. Bopp, 117 Fla. 532, 158 So. 89; 97 A.L.R. 1035; Gibson v. Lehde, 128 Fla. 703, 175 So. 726. For the reasons stated, the order granting new trial is affirmed. So ordered. TERRELL,. ADAMS, SEBRING and BARNS, JJ., concur. Thomas, C. J., and CHAPMAN, J., dissent.…
Authorities Cited
- Zigler v. Erler Corp., 102 Fla. 981 (Fla. 1931)
- Woods v. Atl. Coast Line R.R. Co., 100 Fla. 909 (Fla. 1930)