Alexander v. Ballard

• Decision Date: 17 May 1928
• Citation: 95 Fla. 950,117 So. 96
• Parties: ALEXANDER v. BALLARD.
• Court: Florida Supreme Court

117 So. 96

95 Fla. 950

ALEXANDER v. BALLARD.

Florida Supreme Court, Division B.

May 17, 1928

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by R. E. Ballard against Olin M. Alexander. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Proof must meet and correspond with allegations; there can be no recovery on cause of action, however meritorious, which is in substance variant from that pleaded by plaintiff. The allegata and probata must meet and correspond, the issues being made by the pleadings to which the proofs must be confined. There can be no recovery upon a cause of action however meritorious it may be, that is in substance variant from that which is pleaded by the plaintiff.

Evidence showing plaintiff was entitled to real estate broker's commission held not to support judgment for plaintiff on counts for money lent, money paid, money received for use of plaintiff, and money found due plaintiff on accounts stated. In action on counts for money lent, for money paid for defendant at his request, for money received by defendant for use of plaintiff, and for money found due from defendant to plaintiff on accounts stated, evidence whose showing most favorable to plaintiff was that plaintiff was entitled to real estate broker's commission from defendant was inconsistent with allegations of declaration, and did not entitle plaintiff to judgment.

COUNSEL Altman & Morrow, of Tampa, for plaintiff in error.

Peacock & Parker, of Tampa, for defendant in error.

OPINION

BUFORD J.

In this case the declaration was in four counts, as follows:

'(1) For money lent by the plaintiff to the defendant.

'(2) For money paid by the plaintiff for the defendant at his request.

'(3) For money received by the defendant for the use of the plaintiff.

'(4) For money found to be due from the defendant to the plaintiff on accounts stated between them.'

There was one plea of general issue, 'That the defendant was never indebted as alleged.' Upon the trial there was a judgment for plaintiff and writ of error was sued out.

The aspect of the proof most favorable to the plaintiff is to the effect that plaintiff was a real estate broker and that defendant procured his services to trade a piece of land at a trade-in value of $250,000 as a binder on another piece of land, which the defendant proposed to purchase, and that the defendant, prior to the consummation of the trade, agreed to pay the plaintiff 5 per cent. commission based on the trade-in value of the land; that plaintiff consummated the trade by which the defendant conveyed his lands which were located in the state of Alabama at the agreed value of $250,000 as a binder on the Florida lands which the defendant proposed to purchase; and that the defendant...