Opinion
August 28, 1951. Rehearing Denied November 20, 1951.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Watkins Cohen, Tallahassee, Stanley B. Richard and Harold Ungerleider, Miami Beach, for appellant.
L. Earl Curry, Miami, for appellee.
This is an action on a promissory note which comes here for the second time. See Maloney v. McBride's, Inc., Fla., 44 So.2d 296. On the former appearance we held the proof adduced was sufficient to establish the execution and delivery of the promissory note as made issues by pleas one and two of the defendant and remanded the cause for trial on the question of the consideration of the note, which was made an issue by the defendant's-appellee's third plea. On the second trial a jury was waived and the trial Court, at the conclusion of all the evidence, granted a motion for a directed verdict and judgment for the defendant-appellee. From the judgment an appeal has been perfected here.
It appears by the record that McBride's, Inc., was a dummy corporation owned and organized by Joseph A. McBride, with qualifying shares therein placed in the name of Patrick H. Maloney and L. Earl Curry. The payee of the note, Patrick H. Maloney, died in July, 1947, and the executrix of the estate of the deceased instituted this suit. The note sued upon was in the hands of attorney Curry when the payee died and was by him delivered to the attorney for the executrix. The defendant-appellee paid on the note prior to suit the sum of $6,995.82. The deceased conveyed to the appellee described lands and left the conveyance with the attorney. McBride and the attorney testified in the lower court.
We have carefully reviewed all the testimony, the several exhibits adduced and admissions against interests as made by some of the witnesses, and have reached the conclusion that ample testimony appears in the record to establish the consideration of the note and the trial Court misinterpreted the legal effect of the evidence when considered in its entirety. We cannot overlook the fact that death closed the lips of Patrick H. Maloney. His tax return made to the Government contains figures, which when considered with other documentary evidence in the record and coupled with admissions about the note as made by the appellee to two or three witnesses, and deeds, contracts and other instruments in the record, simply cannot be overlooked and held for naught.
The judgment entered below is reversed with directions to enter a judgment in behalf of the plaintiff-appellant.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON and ROBERTS, JJ., concur.
ADAMS, J., dissents.