GORDON INTERNATIONAL ADVERTISING, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CHARLOTTE COUNTY LAND & TITLE CO., A FLORIDA CORPORATION, GREEN MANOR CONSTRUCTION CO., INC., A CONNECTICUT CORPORATION, AND LANSING DEVELOPMENT CORPORATION, A MICHIGAN CORPORATION, APPELLEES

Fla. 3d DCA | 1964-12-22
No. 64-259
Before BARKDULL, C. J., and HORTON and HENDRY, JJ.
170 So. 2d 59 Florida District Court of Appeal, Third District (1964) Positive Treatment
Cited by 22 cases

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Holding

The court held that while the trial court erred in allowing an unpleaded affirmative defense, the directed verdict for the defendants was correct due to the plaintiff's failure to prove the agent's authority to bind them. Certain costs awarded to the defendant were reversed.


Facts & Procedural History

Plaintiff sued three corporations for advertising services. The trial court directed a verdict for two defendants, finding their promises to pay were …

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Appellant-plaintiff instituted this action against three corporate defendants, Charlotte County Land & Title Co., Green Manor Construction Co. and Lansing Development Corp., seeking to recover on an account stated for advertising services performed for the defendants.

The action was stayed as to the defendant, Charlotte County Land & Title Co., due to its involvement in bankruptcy proceedings. The suit against the other two defendants proceeded to trial, and at the end of the plaintiff’s case the court directed a verdict for these two defendants.

The plaintiff appeals claiming error was committed by the trial court in directing the defendants’ verdict.

It is apparent from the record that the trial judge directed his verdict on the theory that appellees were not directly responsible for the payment of this debt because the Charlotte County Land & Title Co. was the corporation that contracted the debt and Green Manor Construction Co. and Lansing Development acted as sureties, in that, they were collaterally responsible and only bound in the event the primary debtor failed to pay.

In view of the fact that these were collateral promises to answer for the debt of another, the Statute of Frauds required that they be in writing.1 The court directed a verdict on the uncontested fact that the collateral promises in this case were oral. The court erred in permitting the defendants to raise the affima-tive defense of the Statute of Frauds because they did not plead this defense in their answer to the complaint.2 The failure to plead an affirmative defense, waives the defendants’ right to raise it as a defense to the action.3 However, the result reached by the trial court was correct, even though his reason for reaching this correct result was erroneous, and we will affirm his-ruling.4 This- result obtains because the plaintiff’s evidence failed to show the authority of the person with whom appellant dealt.

The record reveals that all of the plaintiff’s transactions, in regard to this debt, were carried on with a Mr. Rubin, an employee of Charlotte County Land & Title Co. The directed verdict must be affirmed because the appellant failed to establish by what authority Mr. Rubin bound the ap-pellees, in the face of the specific denial of Mr. Rubin’s authority, in the answer. It is-; evident that he had authority to act for the Charlotte County Land & Title Co., but nowhere does it appear that he had authority to act for the other corporate defendants.5 The trial court, therefore, correctly-directed a verdict for the defendants

The appellant has also raised as error several items of cost awarded to the defendant. Inasmuch as we affirm the defendants’ directed verdict, they are entitled' to costs, but we can not agree with one of the items the lower court allowed.

Appellant initially contends that the trial court erred in allowing $211.06 as the cost of producing a witness for the purpose of taking his deposition. Appellant further asserts that it was error to allow $188.00 as-, a witness expense for Mr. Ellis, the princi*61pal corporate officer of the defendant-Green Manor Construction Co. and $246.45 for reporting' the deposition of Harry Gordon, President of the appellant corporation.

Costs, as a compensatory monetary award to the winning party, is a judicial attempt to make the winning party as whole as he was prior to the litigation.6 The theory being that the prevailing party should not lose anything, at least financially, by virtue of having established the righteousness of his claim.7 It is similarly axiomatic that the litigants are under a duty to keep the cost of the litigation at a reasonable figure,8 and the determination of reasonableness is left to the discretion of the trial court.9

In regard to the allowance of expenses for a witness’ deposition and the deposition of the plaintiff’s president, the appellant has failed to demonstrate in what manner the trial court abused his discretion. Failing this demonstration, the trial court’s allowance of expenses will not be disturbed.10

The trial court erred, however, in charging to appellant the expense of the principal officer of Green Manor Construction Co. appearing from out of state. The general rule, with which we agree, is that a corporate officer, who appears, voluntarily or otherwise, for the purpose of representing the corporate party, may not charge his expenses to the losing side.11 The reason for the rule being that, inasmuch as, a party may not recover witness fees, then the corporate officer whose duty it is to represent that corporation may similarly be barred from recovering witness fees. It appears from the appellee’s brief that the corporate officer, Ellis, attended the trial for just such purpose, and his expenses may not be charged to appellant

Accordingly, the judgment appealed is affirmed except that portion of the cost judgment which awarded defendant-Green Manor Construction Co. $188.00 for the expense of Mr. Ellis attending the trial, which is reversed.

Affirmed in part, reversed in part


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Citator

Cited By (11 total)

  • Con-Dev OF Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973)
    …ly plead certain enumerated defenses and “any other matter constituting an avoidance or affirmative defense.” An affirmative defense is waived unless pleaded. Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., Fla.App.1964, 170 So. 2d 59. Under F.R.C.P. 1.140(f) a party may move to strike any defense which is insufficient, redundant, immaterial, impertinent or scandalous. Specific performance of a contract for the sale of realty will not be decreed against the vendor who is unable…
  • Weiss v. Turtletaub, 386 So. 2d 1245 (Fla. 3d DCA 1980)
    …e balance of the costs sought herein as, in our view, the showing made on this record is far too sparse to establish, as it should, that such costs served a useful purpose. Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So. 2d 59, 61 (Fla. 3d DCA 1964); see Wilkens v. SuperX Drugs of Florida, Inc., 232 So. 2d 19 (Fla. 4th DCA 1970). Affirmed in part; reversed in part.…
  • Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st DCA 1986)
    …to taxation of costs in first trial as well as second trial). For a holding similar to Thornburg, see also Mack v. Garcia, 453 So. 2d 465 (Fla. 4th DCA 1984). As stated in Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So. 2d 59 (Fla. 3d DCA 1965): “Costs, a compensatory monetary award to the winning party, is a judicial attempt to make the winning party as whole as he was prior to the litigation. The theory being that the prevailing party should not lose anything, at leas…

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