On appeal from a judgment of the Supreme Court (Atlantic Circuit).
For the plaintiff-appellant, John Fuchs.
For the defendants-respondents, Endicott & Endicott.
The opinion of the court was delivered by
TRENCHARD, J. This is an appeal from a judgment of nonsuit.
The suit was instituted by Bernard V. Dolin on September 17th, 1931, upon two promissory notes, both for $2,500 and dated August 15th, 1925, at the city of Sarasota, Florida, one payable on or before one year, and the other on or before two years after date, to the order of Harrison-White Corporation, with interest at eight per cent., which notes were executed by the defendants, R. Bennett Darnall and Walter I. Dawkins.
The complaint alleged that Dolin (plaintiff-appellant) was the holder and owner of such notes and demanded payment.
The answer filed consisted of a general denial and a separate defense (among others) alleging in substance that on July 26th, 1926, both of such notes were duly paid to and canceled by the Harrison-White Corporation, the payee
thereof, by one Hover to whom they were then delivered after being marked paid and canceled.
At the trial it appeared, and was undisputed, that the payee received the agreed cash value of the notes, and wrote on the face of each "Paid July 26, 1926, Harrison-White Corporation, by W. G. Harrison, Pres.," and the plaintiff then undertook to prove that the intention of Hover was to purchase, and not to pay the notes, and that the cancellation was unintentional or under a mistake.
The trial judge held that the plaintiff failed in that undertaking, finding that there was no competent evidence from which the jury could legitimately conclude that the cancellation was unintentional or a mistake, and took the ground (among others) that payment and cancellation justified a nonsuit. But in the view that we take of the case we find it unnecessary to consider the propriety of the nonsuit upon that ground, although we incline to think it was sound. We rest our decision for affirmance of the nonsuit upon the first ground stated by the trial judge, and now to be considered.
The trial judge took as his first ground for nonsuit that, at the time of the institution of the suit, the plaintiff was not in possession of the notes either personally or by his agent, nor was he the beneficial owner ...