Huling v. The Florida Savings Bank, &c.-Argument of Counsel. Ist. That the court erred in refusing to grant the motion in arrest of judgment. 2d. That the court erred in refusing to grant the motion for a new trial. 3d. That the record shows that there was no joinder of issue to any of defendant's pleas, therefore it was error to enter up judgment for plaintiff. Fleming & Daniel for Appellant. We may consider together the first and third errors assigned, in which is involved the question as to whether or not it was necessary to join issue on defendant's pleas, which was raised in the lower court by the first and second grounds of the motion which was urged for arrest of judgment. In the case of Miller & Croom vs. Hoc., 1 Fla., 189, it is decided that "upon a failure to rejoin to the replication to a plea of non-damnificatus there is no issue which can be submitted to a jury, and the defect is not cured by a verdict;" and in Benbow vs. Marquis & Co., 17 Fla., 441, this court holds that "it is error to submit an issue upon one plea to the jury while other pleas remain undisposed of, when it appears that they were not abandoned." In which case, in the opinion delivered by Mr. Justice Westcott, the decision in McKinnon vs. McCollum, 6 Fla., 376, is cited and approved, which is to the same effect. The pleas in the case at bar have no formal conclusion, nor is such conclusion necessary under our rules of pleading. The first and second pleas being a traverse of allegations in the declaration would, under the general rules of pleadings, conclude to the country. Wherefore it is contended by the appellant that a joinder of issue is not necessary. But Section 33 of the practice act, known as Blount's Huling v. The Florida Savings Bank, &c.-Argument of Counsel. Code, as we contend, requires a joinder of issue to all pleadings where issue is tendered. It provides that either party may plead in answer to the plea or subsequent pleading of his adversary that he joins Issue thereon. And after giving the forms provides further "that in all cases where plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the plaintiff may add a joinder of issue for the defendant," thereby giving the plaintiff the right to add the joinder of issue, if the defendant fails to do so, and prevent the possibility of prejudice to his case. If then the joinder of issue is unnecessary to pleading which denies the antecedent pleading, why give the plaintiff the right to protect himself by filing the joinder of issue upon the failure of defendant? and why should the statute provide for the joinder of issue to a plea in denial? Again, the said section provides that either party may plead in answer to plea, or subsequent pleading, that he joins issue thereon. We contend that the word may here used means the same as shall. In Mitchell vs. Duncan, 7 Fla., 13, it is held that when the statute directs the doing of a thing for the sake of justice the word may means the same as shall. See also SuperVisors vs. U. S., 4 Wallace, 435. Section 33 of said practice act, providing for the "joinder of issue," follows in regular sequence the section of said act (Nos. 30, 31 and 32) which provides for pleas and subsequent pleadings by defendant and plaintiff respectively in denial of the preceding pleading. The case of Benbow vs. Marquis & Co., above cited, was an action of replevin for logs. The pleas were first, the general issue; second, denial of property in the plaintiff; and third, a denial of plaintiff's right of possession; the fourth plea alone sets up new matter; under the rules of Huling v. The Florida Savings Bank, &c.—Argument of Counsel. pleading the second and third pleas, as well as the first, being in denial of allegations of the declaration, should conclude to the country, and not with a verification. I Chitty's Pleading, 16 Am. Ed., p. 583. In delivering the opinion of the court the learned Judge makes no distinction as between the second and third pleas which are in denial, and the fourth which sets up new matter, and subjects them without discrimination to the rule laid down in McKinnon vs. McCollum, holding it error to subinit said pleas to the jury without replication. It is contended by counsel for the appellee that an allegation of the declaration denied by the plea presents an issue to the jury, and that no joinder is necessary. We answer that a joinder is necessary to show that the plaintiff accepts the issue tendered, and consents to go to trial on such issue instead of demurring or replying specifically. It is a rule of pleading, the propriety and wholesomeness of which has been tested by the experience of ages. We would call the attention of the court to the case of Earle vs. Hall, 22 Pickering, 202, where it is held that a plea concluding to the contrary is not complete without a similiter and where the question is fully discussed. In addition to the foregoing, we would respectfully submit to the court that the third plea, which is in the following words: Defendant says "that he did not authorize the plaintiff to sell said certificates at any price over fifty percent. of their face value as alleged," although ending with the words "as alleged," is not as a fact in denial of any allegation of the declaration, which alleges that the defendant "authorized and empowered and employed plaintiff to enter into contracts with purchasers for the sale of said certificates at any price over fifty-five per cent. of their face value," the declaration alleging authority to sell at any price over fifty Huling v. The Florida Savings Bank, &c.-Argument of Counsel. five per cent., and the plea denying any authority to sell at any price over fifty per cent. This plea should have been disposed of; if good, it should have been replied to; if bad, demurred to. The failure to do either, and submitting the case to the jury with this plea undisposed of under the rules laid down by this court in the decisions above cited, was error. It is contended by appellee that the failure to join issue is cured by verdict; but that is contrary to the uniform decisions of this court from the time of its creation to the present, and we would again invoke the decision in Miller & Croom vs. Hoc, 1 Chitty's Pleading, 16 Am. Ed., 626. We do not find that doctrine supported. There are cases where the court has permitted the record to be amended after verdict by adding the similiter where it had been omitted. But no such amendment has been made in this case, and if that were possible at the time when trial was had we submit that the record could not be so amended after the term. We come now to consider the second error assigned; that the court erred in refusing to grant the motion for a new trial. There are certain of the grounds for the motion for new trial which might with propriety be urged on the motion to the Circuit Court, but under the rulings of this court, as frequently expressed, would not be here considered. We will, therefore, confine ourselves to such grounds as we think this court will take into consideration; the sixth ground is that the verdict of the jury is contrary to the manifest weight of the evidence. It is held by this court in Wilson vs. Dibble, 14 Fla., 47, "that a new trial will not be granted as against the weight of evidence, unless the preponderance is such as to warrant the opinion that the verdict was produced by improper influences." Huling v. The Florida Savings Bank, &c.-Argument of Counsel. Is not the preponderance of testimony in favor of the defendant in this case sufficient to warrant such influence? J. C. Greeley, the President of the plaintiff, testifies that Huling authorized him to sell the coupon certificates in question and account to him at 55 cents for his compensation; he claims all in excess over fifty-five per cent. of their face value. The defendant, Huling, denies this, and says that he did not authorize Greeley to make sales, and made no such agreement as to commissions, but that he told Greeley that if he would send him a purchaser to whom he, Huling, should make a sale he would pay him a commission, which was to be five per cent. Huling's testimony is corroborated in substance by Gordon E. Weld, a disinterested witness, in answer to fourth direct interrogatory. In addition thereto Huling testified that Greeley (who acted throughout as the President of the bank) telegraphed him tha the had sold the certificates at fifty-five cents. This was not denied by Greeley, and therefore must be taken as a fact admitted. And we submit that the plaintiff is estopped in a suit against Huling to show that it sold for a higher figure, and admitting, for the sake of the argument, the truth of Greeley's testimony as to his authority to sell, and his compensation being all in Excess of fifty-five per cent., he is entitled to receive nothing, as he advised Huling that he had sold at that figure. And Huling had a right to assume that he was at liberty to sell to any other party without prejudice to the plaintiff. After perusal of the brief of counsel of appellee we deem it proper to make the following reply to the authority by him cited in support of the proposition that the omission to file similiter is not a fatal defect, to-wit: 8 Fla., 9. In this case the court, without elaborating on the point, de |