Suit was filed by White Furniture Company to enforce an alleged equitable lien upon certain household furniture in the possession of one Ashley and wife, which had been purchased by them from Mather-Hodgkins, Inc., under retain title contract. The gist of the bill of complaint was that a subsequent transaction, whereby Mather-Hodgkins, Inc., had placed the conditional sales contract with a bank with instructions to collect installments due thereon and remit the same to White Furniture Company in liquidation of a pre-existing debt, amounted to a partial equitable assignment of the contract, and amounts due thereon, to the extent of the pre-existing debt.
The answer filed by appellee, who had become the purchaser of the assets of Mather-Hodgkins, Inc., at bankruptcy sale subsequent to the above transaction, denied that the transaction constituted an equitable assignment, and denied the authority of the officer who purportedly represented Mather-Hodgkins, Inc., to validly bind the corporation in the matter.
Testimony was taken before an examiner appointed by the court. The chancellor found in favor of the defendant and dismissed the bill. The appeal is from the final decree.
Questions of fact only are presented by the appeal. The burden of proving the nature of the transaction, and of the authority of the officer to bind the corporation, rested upon the appellant, under the pleadings. The failure of the appellant to sustain either one of the issues presented, by a pre-ponderance of the evidence, would be fatal to recovery by the appellant. The chancellor undoubtedly found that the appellant had not sustained the burden of proof on at least one of these issues; otherwise, he would not have found that the equities of the case were with the defendant. The question, therefore, is whether the chancellor has so clearly erred in his conclusions on the facts presented as to call for a reversal by this Court.
Even though the testimony was taken before an examiner, and findings on such testimony will not be given the same effect as the verdict of a jury, the conclusions of the chancellor *Page 131 on testimony so taken may not be reversed, unless it clearly appears that he has erred in such conclusions. Lluis v. Lluis,91 Fla. 706, 108 So. 671; Weaver-Loughridge Lumber Co. v. Kirkland, et ux., 99 Fla. 426, 131 So. 784.
There is ample evidence to sustain the decree. This court is unable to say that the appellant has sustained the burden of proof cast upon him by the pleadings. The decree, therefore, should be affirmed.
It is so ordered.
BUFORD, C.J., TERRELL, BROWN and SEBRING, JJ., concur.
CHAPMAN, THOMAS and ADAMS, JJ., dissent.
ON REHEARING