In an action in the Circuit Court brought by Scott against the bank to recover for the alleged conversion of corporation stock that had been placed in the bank as collateral security for a loan, Scott obtained a judgment and the trial court granted a new trial, which *Page 827 order was, on writ of error under the statute, affirmed. See foregoing opinion, reported in 139 So. 370; 142 So. 650,143 So. 444.
The motion for new trial herein included grounds that the verdict is contrary to law, contrary to the evidence, is excessive; that the court erred in stated rulings on testimony concerning the market price of the stock alleged to have been converted; in charges on the measure of damages, and other charges.
A motion for new trial should be granted by the trial court if any ground of the motion considered with the whole record in the cause warrants the granting of the motion. Likewise on writ of error taken under the statute to an order granting a new trial in an action at law, the order should be affirmed if any ground of the motion for new trial, considered with the entire record in the cause, sustains the order, even though the trial court states one or more grounds of the motion as being the basis for the order and such ground or grounds be held by the appellate court to be sufficient to sustain the order. The order covers all grounds of the motion, and the specification of one or more grounds as being the basis or the reason for the answer does not modify the legal effect of the order as covering all grounds of the motion. If in specifying the grounds of the motion on which a new trial is granted, the other grounds of the motion are impliedly held by the trial court to be insufficient to sustain the order, a writ of error taken to the order granting a new trial authorizes the appellate court to "review the said order," and as the order covers all the grounds of the motion, the appellate court should affirm the order if any ground of the motion considered in the light of the entire record in the cause is legally sufficient to sustain the order, no matter how many other grounds of the motion *Page 828 are by the trial court or by the appellate court held to be insufficient to sustain the order granting a new trial.
The order granting a new trial is as follows:
"The above entitled cause having come on this day for hearing on the motion for a new trial filed by the defendant, and the Court having heard argument of counsel, and being of opinion that while there was no error in the charge of the Court with respect to the measure of damages, it appearing to the Court that under the promissory note given by the plaintiff to the defendant, to which the certificate for 300 shares of stock in Clarence Saunders Corporation was attached and pledged as collateral, it was provided that the pledgee in the event of default of the pledgor, under the terms of said note should have the right to sell the said collateral without notice to the pledgor, and the Court being of opinion that said condition of said note constituted a valid waiver on the part of the pledgor of the statutory provision for ten days' notice of sale of the collateral, and being otherwise fully advised in the premises, it is thereupon
CONSIDERED AND ORDERED:
1. That the said motion of the defendant for a new trial in said cause be and the same hereby is granted, and the verdict of the jury found in this cause is hereby set aside.
2. That the exception of the plaintiff to the ruling of the Court in the premises, is hereby noted, and the plaintiff is allowed sixty days after the date of this order in which to prepare and present his bill of exceptions."
Chapter 4376, Acts of 1895, enacted:
"That in all cases in which any contract, obligation, security or evidence of indebtedness shall be pledged or deposited as security for the payment of any indebtedness, the person or corporation to whom the same may be pledged, hypothecated or transferred, and their assigns, shall have the power to sell the same, in such manner, and on such terms as may be agreed upon in writing by the parties at the time of making the pledge, and *Page 829 such sale shall vest in the purchaser or purchasers, the title in and to said pledges, collaterals or securities."
Chapter 5905, Acts of 1909, added to the section of Chapter 4376 the following:
"Provided, Ten days' notice of said sale be given to the party pledging the same." See Section 6931 (4845) C. G. L.
The purpose of the statute as amended is to state the law of this State to be that a "person or corporation" to whom any contract, obligation, security or evidence of indebtedness shall be pledged or deposited as security for the payment of any indebtedness "and their assigns shall have the power to sell the same" as may be agreed upon in writing at the time of making the pledge; "provided, ten days' notice of said sale be given to the party pledging the same." See Black v. First Natl. Bank of Brooksville, 97 Fla. 19,119 So. 521. The statutory requirement of ten days' notice of a sale cannot legally be waived when making the pledge. In this case the writing evidencing the pledge purports to waive notice of sale to the pledgor, and such attempted waiver is inoperative. A sale without giving required notice to the pledgor under such an instrument of pledge is not authorized by law. The ground of the motion for new trial indicated by the trial court as the basis or reason for granting a new trial, is untenable, but there were other grounds of the motion for new trial that are material and should be considered.
Section 4615 (2905) Compiled General Laws, authorizes a writ of error to "the entry of an order granting a new trial at law," and provides that the appellate court "shall review said order." The order is predicated upon all the grounds of the motion for new trial, even though the trial court specifies one or more grounds of the motion for new trial as being the reason for the order. An order granting a motion for new trial necessarily covers *Page 830 the entire motion upon which the order is made. When the trial court grants a new trial on specific grounds of the motion for new trial, the plaintiff in error may be entitled to a reversal of the order if the ruling as to the specified grounds be erroneous and not cured or rendered immaterial by other proceedings had, and other grounds of the motion for new trial are not sustained by the record as an entirety; see Feinberg v. Stearns, 56 Fla. 279, 47 So. 797; G. S. F. Ry. vs. Hamilton, 63 Fla. 150, 58 So. 838; Nathan vs. Thomas,63 Fla. 235, 58 So. 247; P. U. Ins. Co. v. Bigelow, 48 Fla. 105,37 So. 210; yet the defendant in error is entitled to an affirmance of the order granting a new trial, if the court would have been warranted in granting a new trial onany ground of the motion for new trial, when considered in connection with the whole record in the cause, whether such ground is specifically mentioned in the order or not. See Aberson v. A. C. L. R. R. Co., 68 Fla. 196, 67 So. 44; Lockhart v. Butt-Landstreet, 91 Fla. 479, 107 So. 641; Anthony Farms Co. v. S. A. L. Ry., 69 Fla. 188, 67 So. 913; Chency vs. Roberts,77 Fla. 324, 81 So. 475. Otherwise the defendant in error would have a decision of the appellate court against him on erroneous rulings of the trial court that he had no opportunity to combat as he would have had by writ of error to a final judgment if a new trial had been denied by the trial court. This is true because the statute provides that if an order granting a new trial is reversed on writ of error, the appellate court "shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment or for judgment non obstanteveredicto, shall be made and prevail." An arrest of judgment or a judgment non obstante veredicto would be predicated on the pleadings, leaving other matters arising in the trial foreclosed by the reversal of the order granting a new trial, as *Page 831 to which other matters, though incorporated in the motion for new trial, the party against whom the verdict was rendered would have no opportunity for an appellate review if the appellate court does not affirm the order granting a motion for new trial when any ground of the motion that is material and insisted on, warrants an affirmance of the order granting a new trial. In Nathan v. Thomas, supra, the ground of the motion that was considered controlled the disposition of the cause without reference to other grounds of the motion for new trial.
While legal and relevant testimony that is admitted and not controverted should be given its appropriate probative effect by the jury in rendering its verdict, yet the ultimate determination of the legal effect of the testimony so adduced, is a judicial question to be determined by the trial court on motion for new trial by a due consideration and application of controlling principles of law, subject to appropriate review by proper appellate procedure.
If the testimony did not duly prove the fact in issue according to pertinent principles of law, it is within the power and province of the trial court on a motion for new trial, subject to appellate review, to adjudge the fact in issue to be not duly established, even though the testimony was legally admissible and was not controverted at the trial and even though it was found by the jury in rendering the verdict that the testimony was sufficient to prove the issue of fact.
In this case one of the issues to be proved by the plaintiff was the value of the corporate stock within a reasonable time after the alleged unlawful conversion of the stock by the defendant. The stock was sold by the defendant for $18.00 per share on February 7, 1928.
The testimony shows that the plaintiff had undertaken but failed to sell the stock at $15.00 per share; and that on the day it was sold, February 7, 1927, plaintiff offered to *Page 832 purchase it at $15.00 and $18.00 per share. There was testimony that some of the stock was sold elsewhere in February, 1928, at $25.00 per share and that the stock was quoted later at $40.00 per share and at $50.00 per share in June; and in August and September "between $50.00 and $60.00" per share. The legal effect of the testimony as a whole was not to prove the value of the stock within a reasonable time within which to replace the stock after the alleged conversion in February, 1928, to be as much as $41.00 per share as apparently was found by the verdict. As the motion for new trial contained grounds that the verdict is contrary to the law and to the evidence, and is excessive, and as the legal effect of the evidence does not sustain the amount of the verdict, it is manifest that there are grounds of the motion legally sufficient to sustain the order granting a new trial, even though the ground referred to by the trial court as being the basis for the order, is found by this Court to be untenable as matter of law.
This Court in reviewing the order on writ of error, should affirm the order when any ground of the motion warranted the order granting a new trial. In law the order covers every ground of the motion for new trial, and the order should not be reversed unless no one of the grounds of the motion for new trial that are duly presented for consideration by the appellate court, is legally sufficient to sustain the order granting a new trial.
Affirmed.
DAVIS, C.J., AND WHITFIELD, AND TERRELL J.J., AND JOHNSON, Circuit Judge, concur.
BUFORD, J., dissents. *Page 833