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Robinson v. Barnett-Argument of Counsel.

and for the purpose of saving the bank the trouble of protesting. Swaim, the cashier of the bank, a disinterested witness, fully sustains Robinson's statement. Barnett, the plaintiff, says he did not hear that it was a forgery till six weeks or two months afterwards; that he saw Robinson write the words on the note; that he heard all the conversation at the time, and that he did not hear Robinson say it was a forgery. Yet this does not refute the testimony of Swaim and Robinson that Robinson did declare it to be a forgery, and only wrote the waiver of protest to save them further loss and embarrassment; that Swaim, the cashier of the bank, knew and understood the object of the encorsement.

The negative statement of Barnett, one of the officers of the bank, that he did not hear Robinson say it was a forgery does not prove that Robinson did not say it to Swaim, another officer of the bank. On the contrary, Swaim, in distinct terms, says Robinson did disclose to him that it was not his signature, but that he was willing to waive protest to save them that formality and trouble.

It was sufficient if the cashier of the bank, the man who liad this business in hand and was competent to attend to it alone, did have this conversation with Robinson, and did understand the purpose of the writing, the waiver of the protest, on the back of the note.

5th. The court erred in not granting a new trial, because the verdict of the jury was contrary to the 6th charge of the court and the law in the case. It is evident that the jury labored under the impression, which counsel sought so persistently to fasten upon their minds, that because Robinson did not tell Barnett, the President of the bank, that it was a forgery, and he, Barnett, not knowing it to be a forgery, was led to "sleep on his rights” six weeks or more; that therefore Robinson was bound to pay. It was the Robinson v. Barnett-Argument of Counsel.

22–19th Fla.

business of the President to know all that the Cashier had ascertained in reference to the matter. At all events his failing to hear, or neglecting to ascertain, or Swaim's neglecting to inform him of the facts regarding the note and the writing on the back cannot in any way bind or involve Robinson. It was enough that one of the principal agents and officers of the bank knew it.

Robinson's words and actions in the matter amounted to this: “Well, although it is a forgery, and while I have nothing to do with the note, still I am willing to save you the trouble and expense of protesting it.”

And Swaim's words and action were tantamount to his saying: “Very well, then, if you are willing to save us that trouble do so by writing 'protest waived' above the signature on the back of the note.”

And Robinson's evident kindliness towards a banker with whom he was daily doing business, and his willingness to save him from any further trouble than was necessary in the embarrassing situation in which he found him, ought not to be construed to Robinson's damage or made a trap to catch, to mulct him in a large sum of money.

Hence we submit that the court erred in not granting a riew trial, chiefly for the reason that the verdict was against the evidence and the weight of evidence. There was no conflict of testimony, all tended one way, viz: that the endorsement of “C. L. Robinson was and is a forgery; that appellant never authorized the endorsement, nor sanctioned nor ratified the same; that on the day of maturity appellant first saw the note, then others informed the Cashier that the endorsement was a forgery; that this knowledge was clearly brought to him, appellee, through his Cashier; that there was not nor could not be any doubt on this subject in the mind of the Cashier; that this knowledge was the knowledge of the appellee; that apppellee was bound

Robinson v. Barnett-Argument of Counsel.

by it, as correctly charged by the court; that appellant never ratified the act, and that there is not a statement in the whole testimony that militates against it. The testimony of Barnett, appellee, shows that he personally and of liis own knowledge did not know that the signature was disputed until six weeks or two months after. Yet the fact remains that through his Cashier he legally knew it. And the appellant here, defendant below, had given all the notice that the law required, that the rule of business demanded or the most rigid morality would dictate.

We cannot help expressing our surprise that a new trial was not granted on mere motion, or indeed without a motion.

Cockrell & Walker for Appellee.
Points for Appellee:

1. The jury has twice decided that the signature was Robinson's.

It will require a very strong case to induce this court to disturb the concurring conclusions of both the jury and the presiding court as to an issue of fact.

The principles laid down in Barnett vs. Robinson, 18 Florida, should not be extended. See Martin vs. Cole, 104 U. S. Rep., 30. .

2. If Barnett was misled or deceived by Robinson's act iji “waiving protest," and in consequence was induced to cmit securing the debt out of Blew's property, Robinson is estopped.

It is not necessary that the party who claims an estoppel should have acted affirmatively upon it. It is enough, if he shall have been induced to refrain from such action as lay in his power by which he might have retrieved his position and saved himself from loss. See cases collected in 66 New York, (21 Sickles) 113.

Robinson v. Barnett-Opinion of Court.

MR. JUSTICE VANVALKENBURGH delivered the opinion of the court :

For a statement of the case in this cause see Robinson vs. Barnett, 18 Fla., 602. The judgment of the court below was in that case reversed, the cause retried, and is again here on errors assigned by the defendant below, appellant here, as follows:

ist. The court erred in charging the jury as follows: “If the jury find from the evidence that plaintiff was misled to his injury or loss by the act of the defendant in writing the words 'protest waived' over what purports to be his endorsement as sued on, and was induced to sleep on his rights, and not to take any active measures to enforce the payment of the note from the maker or other endorser, or even to secure it, then the defendant is estopped, and the jury must find for the plaintiff.”

In refusing to charge the jury as requested by the defendant, to-wit :

“2d. Admitting that the words 'protest waived' were written at the time of the maturity on the back of the note by C. L. Robinson, and that for a particular purpose, towit: waiving protest, no consideration having passed between them, Barnett to Robinson, such endorsement would not bind Robinson to pay the note or create any liability."

3d. "If Mr. Robinson, defendant herein, had waived protest not then knowing that the purported endorsement was a forgery, but afterwards, and before payment, learned that the purported endorsement was a forgery and then refused payment, plaintiff could not recover, if the facts upon trial showed that the endorsement was a forgery and never had been adopted by defendant.”

4th. The court erred in refusing a new trial upon the ground that the verdict was contrary to the manifest weight of evidence.

Robinson v. Barnett-Opinion of Court.

5th. Upon the further ground that the verdict was conrary to the charge of the court.

The plaintiff, Barnett, to prove his case, testified in his own behalf as follows: “I am the plaintiff in this suit. I am a banker, doing business as the Bank of Jacksonville in this city. As such banker I discounted the note sued on at the request of the maker, C. W. Blew, who brought it to the bank for that purpose endorsed as it now is with the exception, the waiver of protest was not then upon it. I gave Blew five hundred dollars on the note. Some time after the note became due, and I sent Mr. Swaim to C. L. Robinson to notify him the note was due. This was in the inorning. Mr. Swaim came back and reported that Mr. Robinson would call in that afternoon. In the afternoon the defendant came into the bank, and I handed him the note myself. He then wrote, in my presence, upon the note just above his name as endorser the words ‘protest waived,' saying he would waive protest.” On his cross-examination he said: “I did not pay the defendant any money on the note at any time. There was some conversation between Mr. Robinson and myself at the time the words were written on the back of the note by him. I heard all the conversation that took place at the time in the bank in reference to the note and the waiver of protest. Nothing whatever was said by Robinson at the time denying or calling in question the genuineness of his signature as encorser, or as to saving of cost of protest. Mr. Swaim went to see Mr. Robinson, as I have said, taking the note with 1.im, to notify him that it was due,” &c.

The note was then offered in evidence and the plaintiff rested his case.

The defendant was introduced as a witness in his own behalf and testified: “The endorsement of my name on this note is not my endorsement. I never signed it, or au

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