Berger v. E. Berger & Co.

CourtUnited States State Supreme Court of Florida
Citation76 Fla. 503,80 So. 296
PartiesBERGER v. E. BERGER & CO.
Decision Date02 December 1918

Rehearing Denied Dec. 20, 1918.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by E. Berger & Company against E. Berger. Judgment for plaintiff, motions for new trial and in arrest of judgment overruled, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

It is the duty of the appellant or the plaintiff in error to clearly and distinctly specify and separately assign each error which it is contended was committed and upon which reliance is placed for a reversal.

An assignment of error based upon an order overruling a demurrer to a declaration as a whole which contains more than one count is not well taken if it attacks the order in its entirety and the declaration contains one good count.

In an action for breach of a contract, the amount claimed as damages in the declaration is not the subject of demurrer.

During the trial of a case when a question is excluded upon objection, and the question does not indicate of itself whether the answer thereto will be material or pertinent evidence, the party propounding the question, if he intends to have the ruling reviewed, should make an offer at the trial of what he proposes to prove by such question. If he does not, neither the trial nor the appellate court can determine whether the proposed evidence is material or not.

Where a person contracts to supply an article in which he deals for a particular purpose knowing the purpose for which he supplies it and that the purchaser has no opportunity to inspect the article, but relies upon the judgment of the seller as to its suitableness or fitness for the purpose desired, there is an implied condition that the article is fit for the purpose to which it is to be applied.

COUNSEL E. B. Drumright, of Tampa, for plaintiff in error.

J. T Watson, Jr., of Tampa, for defendnat in error.

OPINION

ELLIS J.

The defendant in error, hereinafter referred to as the plaintiff brought an action in the circuit court for Hillsborough county against E. Berger, who is plaintiff in error here. The first count of the amended declaration alleges that the defendant in January, 1907, sold to the plaintiff a lot of lumber that was supposed to contain 175,000 feet at the price of $17.082 per thousand feet; that it was agreed between them that, when the lumber was checked up, if there should be a shortage in the quantity paid for the defendant would make good the amount of shortage, and if upon the other hand, there should be an 'overage,' the plaintiff would pay the defendant therefor; that the plaintiff paid the defendant for 171,133 feet of lumber at the agreed price, but when the lumber was checked up the lot was found to contain only 149,442 feet; that the shortage thus shown amounted to $370.52 at the agreed price per thousand feet, and the defendant has not paid the same to the plaintiff and refuses to pay it.

The second count alleges that the purchase of the lot of lumber by the plaintiff was for the purpose of reselling the same under a contract which it had made with another corporation, which contract required that the lumber should meet and comply with certain requirements as to quality and specifications, and that the lumber was piled in such manner that the plaintiff did not have an opportunity to inspect it when the purchase was made from the defendant, who sold it to the plaintiff for the purpose of the resale under the contract between the plaintiff and the other corporation; that the defendant knew the requirements of that contract as to quality and specifications of the lumber to be sold, knew all the terms of the contract, and that the plaintiff would not have an opportunity to inspect the lumber before selling it to the corporation; that in buying the lumber for the purpose stated the plaintiff relied upon the defendant's knowledge of the contract mentioned and his judgment and good faith in selling to the plaintiff for the purpose aforesaid; that the defendant knew when he sold the lumber to plaintiff that the latter was relying upon his judgment and good faith 'to furnish only a suitable and merchantable quality of lumber for the purpose of filling the contract.' It is alleged that the purchasing corporation rejected 84,833 feet of the lumber because so much of it 'did not meet the requirements and specifications under the contract for its sale,' etc., wherefore the plaintiff lost $1,449.11, and incurred an expense of $1,041.67 in taking care of and preserving the lumber, which it afterward sold for $10.60 per thousand feet, the 'best advantage possible,' and realized upon such sale $899.23, leaving an amount due by the defendant to the plaintiff upon the implied warranty of $1,961.97, but which the defendant refused to pay.

The third count of the amended declaration alleged that as between the plaintiff and the defendant there was an express agreement that the lumber was fit and suitable for the purpose of filling the plaintiff's contract, and that, if any portion of the lumber should be rejected by the prospective purchaser corporation on account of its failure to come up to the requirements, the defendant would make good to the plaintiff all such rejections. It alleged that the defendant refused to make good to the plaintiff the lumber rejected and refused to pay the plaintiff the loss sustained.

There were also six other counts grouped in the second paragraph of the original declaration under the title second count. These counts were for goods bargained and sold; work done and materials furnished; money had and received; money loaned by plaintiff to defendant; money paid and expended by the plaintiff for the use of the defendant and account stated.

Issue was joined upon these common-law counts, and the defendant demurred to the first, second, and third counts of the amended declaration. The demurrer was overruled, and such ruling is assigned as the first error.

The rule which obtains in this state in appellate practice requires that the party seeking relief in the appellate court in preparing the assignment of errors should clearly and distinctly specify and separately assign each error which it is contended was committed. In Eaton v. Hopkins, 71 Fla. 615, 71 So. 922, we held that a single assignment of error, which attacks a ruling of the court upon a demurrer which was interposed to two or more pleas, would be tested by the sufficiency or insufficiency as the case might be of any one of the pleas. In the case at bar, the demurrer attacks separately the three counts of the declaration, and the ruling upon the demurrer is assigned as error. In this one assignment, therefore, is embraced three rulings, because in overruling the demurrer the court held that it was not good as to either count. The plaintiff should point out specifically which count was bad and confine his attack to that count; but, instead of that, he says by the assignment, neither count was good. And as the burden is upon him to make the error to appear, he fails if either count was good. If either count properly stated a cause of action and the evidence supported it, the error, if any, in not sustaining a demurrer to supposedly defective counts, would be harmless unless it was made to appear that the defective count embarrassed or prejudiced the defendant in the trial of the cause, or that by reason of it some right of his was substantially affected. This reasoning has been applied by this court in cases where pleas were attacked by demurrers, and we can perceive no reason for not applying the rule in cases where declarations containing several counts are attacked by demurrers. See Walter v. Florida Savings Bank, 20 Fla. 826; Parkhurst v. Stone, 36 Fla. 456, 18 So. 594; Williams Co. v. Pensacola, St. A. & G. S. S. Co., 57 Fla. 237, 48 So. 630; McDougald v. Bass, 53 Fla. 142, 43 So. 778; McCallum v. Driggs, 35 Fla. 277, 17 So. 407; Jacksonville, T. & K. W. Ry. Co. v. Griffin, 33 Fla. 602, 15 So. 336.

The first count of the declaration clearly states a cause of action based upon an express agreement that if the lumber checked short the defendant would pay the shortage. The third count was based upon an express agreement that the lumber sold by the defendant to the plaintiff would come up to and meet the requirements of the plaintiff's contract with the corporation who was to become the purchaser from the plaintiff, and, if any part of it failed to do so, the defendant would 'make good to the plaintiff for all rejections.' It is true that much unnecessary matter was contained in the count which rendered it needlessly wordy, but the elements of a valid contract are sufficiently alleged in it. It was contended in behalf of the defendant that the third count was vague and uncertain, that the declaration did not show 'that as a matter of law' the defendant warranted the quantity or quality of the timber; that it did not appear that the contract was in writing; that damages claimed were too remote; and that the declaration did not show that the defendant had any greater knowledge of the quality of the lumber than the plaintiff, nor that the defendant was called upon to make good under his warranty by substituting other lumber in place of that found unfit. These grounds we think are untenable. The count is not bad for uncertainty nor vagueness. The...

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    ...there is an implied condition of warranty that the article is fit for the purpose to which it is to be applied. The Court said (text pages 511-513 of 76 Fla., text page 299 of 80 '* * * The purpose for which the lumber was purchased by the plaintiff from the defendant admits of no dispute. ......
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    ...condition or `warranty,\' as it is called, that the article is fit for the purpose to which it is to be applied." Berger v. E. Berger & Co., 76 Fla. 503, 511, 80 So. 296, 299. The rule was reiterated and the Berger case was cited in the most recent of the Florida implied warranty cases. Gre......
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