Potter v. Realty Securities Corp.

Reaves, Circuit Judge (after stating the facts). — Inasmuch as the judgment must be reversed for a reason apparently due to the oversight of both parties, it seems unnecessary to discuss at length the numerous assignments of error, — twenty-three in number. The first clause of Section 13M, General Statutes of 1906, reads as follows: “When from any cause, the Judge of a Circuit or County Court is disqualified from presiding in any civil case, the parties may agree upon an attorney at law, which agreement shall be entered upon the record of said cause, who shall be judge ad litem and shall preside over the trial of and make orders in said case as if he were the judge of the court.” The record wholly fails to show any agreement that Honorable J. Emmet Wolfe should try the cause as judge ad Mtem. In fact, the only information we have as to how he happened to so act is a recital in [771] the bill of exceptions certified by him, stating that Judge Branning being disqualified, and Mr. Price, who had been appointed judge ad litem being absent, “the said parties agreed in open court that said cause should be tried before me as judge ad litem.” This recital in the bill of exceptions is manifestly not a compliance with the provision of the statute that the “agreement shall be entered upon the record of said cause.” “Generally speaking the authority of a special or substitute judge must appear from the record of the case in which he acts.” 23 Cyc. 608. And “The transcript on appeal from the decision of a special judge should contain all facts required to be entered on the record in the court below.” 23 Cyc. 611. This record failing to show affirmatively that the parties agreed upon the Honorable J. Emmet Wolfe as judge ad litem the cause must be reversed. We might rest this opinion here, but since the case must be tried again, we may say that the letter from plaintiff to defendants reading as follows: “We beg to advise that pursuant to your listing with us we have sold your property described as lots 2, 3, 4, 5 and 6 of Block 39, according to the Rhodes Plat of New Biscayne in Dade County, Florida, for $6600.00 on the following terms: “$3000 cash, balance one and two years 8% interest. “This price is subject to the usual commission of 10% payable to us. Please furnish us abstract brought up to date for delivery to the purchaser,” upon which the special count in the declaration is based, does not appear to be a complete contract within itself and it can hardly be [772] said, as the jury was cahrged, that “any previous contract of listing or otherwise is merged in this contract of March 18th” for the reason that this letter reports that a sale had been made “pursuant to your listing.” Pursuant means conformable to, agreeable to, or in accordance with. Hence defendants were informed that the property had been sold in accordance with their listing and they endorsed their approval of a sale of that character. The terms of the listing, therefore, became a part of the terms of sale as reported and accepted and plaintiff should have pleaded the entire contract, not the letter and acceptance only, but a demurrer to the amended declaration as a whole was properly overruled inasmuch as it contained the common counts together with the special count. Plaintiff having failed to plead the entire contract, defendants should have been allowed to plead any material part omitted in the declaration. Their second plea sets up such material omitted portion and should not have been stricken. If the property was listed to be sold and the money paid over by April 1st, or not at all as defendants contend,. the letter of March 18th was a representation that a scale of that character had been made. Whether the property was so listed, and if so, whether it was so sold, seems to be the real issue between the parties and the pleadings should be made up and the cause tried accordingly. It was also error to enter the judgment against but one of two defendants jointly sued and against whom a joint verdict had been rendered. The cause should be remanded for further proceedings agreeable to this opinion. [773] Per Curiam. — The record in this cause having been considered by this court, and- the foregoing opinion prepared under Chapter — , Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be and the same is hereby reversed. Beowne, C. J., and Tayloe, Whitfield, Ellis and West, JJ., concur.