American Process Co. v. Florida White Pressed Brick Co.

CourtUnited States State Supreme Court of Florida
Writing for the Court[56 Fla. 118] WHITFIELD, J.
Citation56 Fla. 116,47 So. 942
Decision Date15 December 1908
PartiesAMERICAN PROCESS CO. v. FLORIDA WHITE PRESSED BRICK CO.

47 So. 942

56 Fla. 116

AMERICAN PROCESS CO.
v.
FLORIDA WHITE PRESSED BRICK CO.

Florida Supreme Court

December 15, 1908


Headnotes Filed December 19, 1908.

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by the American Process Company against the Florida White Pressed Brick Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where the sufficiency of a plea to the merits is not questioned and issue is joined thereon, if such plea is proven without contradiction, it is not error for the court to direct a verdict thereon for the defendant. The proper judgment to be entered upon the verdict is for the determination of the court.

The mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the property under an incomplete conditional sale cannot in general defeat a recovery by the true owner, although such purchaser bought for value and without notice.

Where property is sold on credit, and the title thereto reserved by the vendor, upon a breach of the conditions of the sale, the vendor may either treat the sale as absolute and sue for the price thereof, or he may treat the sale as canceled and recover the property; but the vendor cannot pursue both courses, and the election to pursue either one of two inconsistent remedies operates in law as an abandonment or waiver of the other.

Whether coexistent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.

Where machinery is consigned by A. to the order of H., who is engaged in the business of furnishing and installing such machinery in manufacturing plants on the lands of others, and there is nothing to indicate that the title has been reserved by the consignor, who knew the machinery was to be installed for another party and to become permanently affixed to its land, and gave no notice to such party of the reservation of the title, he cannot recover the property from the party for whom it was installed, and who paid value for it without notice of the conditional sale, particularly where, after merely filing a praecipe in the action for conversion, A. instituted proceedings for the balance due on the price against the party to whom A. sold the property, and received part payment of the price in such proceedings.

COUNSEL [56 Fla. 117] John E. Hartridge, for plaintiff in error.

Bisbee & Bedell, for defendant in error.

OPINION

[56 Fla. 118] WHITFIELD, J.

Action was begun in the circuit court for Duval county on February 10, 1906, by the American Process Company filing a praecipe for summons against the Florida White Pressed Brick Company. On March 5, 1906, a declaration was filed charging that 'the defendant converted to its own use, or wrongfully deprived the plaintiff of the use and possession of, the plaintiff's goods; that is to say one No. 4,225 direct heat dryer,' etc., of the value of $1,000. Plaintiff claimed $2,000 damages.

One of the pleas of the defendant filed on October 21, 1907, was 'that heretofore, to wit, on the 14th day of February, A. D. 1906, the plaintiff in the District Court of the United States for the Southern District of New York interposed a claim against the bankrupt estate of the H. Huennekes Company for or on account of the purchase price of the identical property mentioned in the declaration, that thereafter on, to wit, the 21st day of March, 1907, the said claim was allowed in whole or in part as a valid claim against said bankrupt estate, and thereafter one or more dividends from said bankrupt estate were paid to and received by the plaintiff on account of said claim, and that the said Huennekes Company installed said [47 So. 943] property in defendant's plant under contract with defendant.'

Issue was joined on all the pleas filed by the defendant. At the trial the court gave the following instruction: 'In this case a plea has been filed to the effect that the plaintiff filed his claim in bankruptcy against the Huennekes Company, which company sold the property mentioned in the declaration to the defendant, and that the claim so filed in the bankruptcy proceedings has been adjudicated in favor of plaintiff, and that plaintiff has been paid certain sums on account of its judgment against the Huennekes Company. This plea has been proven by [56 Fla. 119] uncontradicted evidence. The court, therefore, instructs you to find your verdict for the defendant'--which was excepted to. The jury returned a verdict of not guilty, and judgment was entered for the defendant. The plaintiff took writ of error, and among the errors assigned is the giving of the charge above quoted.

The plaintiff did not question the sufficiency of the plea above set out, but joined issue on it, thereby admitting its sufficiency if proven to be true.

As the plea was proven without contradiction, the charge complained of was not erroneous. See Jones v. Shomaker, 41 Fla. 232, 26 So. 191. Even though the charge be correct, the judgment may not be correct if the plea is frivolous. The judgment is not assigned as error, but its correctness with reference to the plea will be considered.

It was agreed 'that the goods mentioned in the declaration were shipped by the plaintiff, American Process Company, about June 23, 1905, from New York, consigned to H. Huennekes Company, care of Florida White Pressed Brick Company, Jacksonville, Fla., by bill of lading, a copy whereof is hereto attached, with instructions to notify Florida White Pressed Brick Company of the arrival of the goods at destination; that said goods were received about July 23, 1905, at Jacksonville, Fla., and defendant Florida White Pressed Brick Company was notified of said arrival by the railroad company, and said goods were installed by Huennekes Company as a part of the brick-making plant then under construction in Duval county, Fla., near Jacksonville, by said Huennekes Company for said Florida White Pressed Brick Company, and were delivered by said H. Huennekes Company to said Florida White Pressed Brick Company as a part of said brick-making plant, and have ever since been and are still in the possession [56 Fla. 120] of the said Florida White Pressed Brick Company.'

The bill of lading shows the goods were shipped to the order of H. Huennekes Company. 'C/o Fla. White Pressed Brick Co.' H. Huennekes Company was engaged in the business of...

To continue reading

Request your trial
100 practice notes
  • Mcmillan v. W.U. Tel. Co.
    • United States
    • United States State Supreme Court of Florida
    • March 4, 1910
    ...14 Minn. 81 (Gil. 62), 100 Am. Dec. 199. The principle announced in the case of American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, [53 So. 334] 47 So. 942, that 'where one of two innocent parties must suffer through the act or negligence of a third person, the loss should f......
  • Malone v. Meres
    • United States
    • United States State Supreme Court of Florida
    • April 30, 1926
    ...law on this subject in the able opinion of Mr. Justice Whitfield in the case of American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054; see, also, 24 R. C. L. 482; Mizell Live Stock Co. v. McCaskill, 59 Fla. 322, 51 So. 547; Campbell Printing Pre......
  • Buhl Highway Dist. v. Allred
    • United States
    • United States State Supreme Court of Idaho
    • June 29, 1925
    ...application to this case. (20 C. J., 7, 8; In re Kaplan & Meyers, 241 F. 459; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 16 Ann. Cas. 1054, 47 So. 942; Steinbach v. Murphy, 143 Mo.App. 537, 128 S.W. 207; Jones v. Gammell-Statesman Publishing Co. (Tex. Civ.), 9......
  • Ray v. Beneficial Finance Co. of North Jersey, No. C--2076
    • United States
    • Superior Court of New Jersey
    • October 27, 1966
    ...53 A.2d 362. The precise proscription of this historical rote was well defined in American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942 'If the Allegations of facts necessary to support one remedy are substantially inconsistent with those necessary to support the ......
  • Request a trial to view additional results
100 cases
  • Mcmillan v. W.U. Tel. Co.
    • United States
    • United States State Supreme Court of Florida
    • March 4, 1910
    ...14 Minn. 81 (Gil. 62), 100 Am. Dec. 199. The principle announced in the case of American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, [53 So. 334] 47 So. 942, that 'where one of two innocent parties must suffer through the act or negligence of a third person, the loss should f......
  • Malone v. Meres
    • United States
    • United States State Supreme Court of Florida
    • April 30, 1926
    ...law on this subject in the able opinion of Mr. Justice Whitfield in the case of American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054; see, also, 24 R. C. L. 482; Mizell Live Stock Co. v. McCaskill, 59 Fla. 322, 51 So. 547; Campbell Printing Pre......
  • Buhl Highway Dist. v. Allred
    • United States
    • United States State Supreme Court of Idaho
    • June 29, 1925
    ...application to this case. (20 C. J., 7, 8; In re Kaplan & Meyers, 241 F. 459; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 16 Ann. Cas. 1054, 47 So. 942; Steinbach v. Murphy, 143 Mo.App. 537, 128 S.W. 207; Jones v. Gammell-Statesman Publishing Co. (Tex. Civ.), 9......
  • Ray v. Beneficial Finance Co. of North Jersey, No. C--2076
    • United States
    • Superior Court of New Jersey
    • October 27, 1966
    ...53 A.2d 362. The precise proscription of this historical rote was well defined in American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942 'If the Allegations of facts necessary to support one remedy are substantially inconsistent with those necessary to support the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT