Beverly v. Hardaway

• Decision Date: 18 November 1913
• Citation: 63 So. 702,66 Fla. 177
• Parties: BEVERLY et al. v. HARDAWAY.
• Court: Florida Supreme Court

63 So. 702

66 Fla. 177

BEVERLY et al. v. HARDAWAY.

Florida Supreme Court

November 18, 1913

Error to Circuit Court, Franklin County; John W. Malone, Judge.

Action by B. H. Beverly and R. D. Fryer against B. H. Hardaway. Verdict for plaintiffs, and, from an order granting a new trial, plaintiffs bring error. Affirmed.

Syllabus by the Court

SYLLABUS

The action of the trial judge in granting a new trial is affirmed upon the principles set forth in Farrell v. Solary, 43 Fla. 124, 31 So. 283; v. Jacksonville Electric Co., 56 Fla. 452, 47 Clary v. Isom, 55 Fla. 384, 45 So. 994; Jones v. Jachsonvile Electric Co., 56 Fla. 452, 47 So. 1; and other decisions of this court.

Where a writ of error is taken to review the action of a trial court in granting a new trial, this court is confined to the consideration of the propriety of the action of the court granting a new trial.

COUNSEL Fred T. Myers, of Tallahassee, and R. F Burdine, of Miami, for plaintiffs in error.

T. L Clarke, of Monticello, for defendant in error.

OPINION

HOCKER J.

B. H Beverly and R. D. Fryer, late partners trading under the name of Beverly & Fryer, plaintiffs, brought an action at law against B. H. Hardaway, defendant, in the circuit court of Franklin county, to recover a balance alleged to be due them for piles furnished by them to the defendant for which he had not paid them. It is alleged in the declaration that the plaintiffs entered into a written contract with the defendant on the 12th of April, 1906, whereby plaintiffs agreed to furnish defendant with all piling necessary to complete the trestle work on the Apalachicola Northern Railroad from Apalachicola river to the end of the trestle on the east side of the East river, for which defendant agreed to pay 5 cents per lineal foot, the piles to be of long-leaf yellow pine, not less than 14 inches in diameter at the butt, and 8 inches at the small end, subject to the inspection of the Morey Engineering & Construction Company in accordance with the specifications in their contract with B. H. Hardaway. It is alleged that prior to April 20, 1906, plaintiffs began to deliver pilings to defendant according to the contract, and did deliver 657,025 lineal feet, being all the pilings necessary to complete the trestle. The defendant thereby became indebted to plaintiffs in the sum of $32,851.25, of which he has paid $31,519.50, leaving a balance due of $1,331.75. The above synopsis will give an idea of the character of the action.

The defendant pleaded, first, never was indebted; second, that he did not promise as alleged; and fifth, that before action he discharged and satisfied plaintiffs' claim by payment. The defendant abandoned pleas of the statute of limitations. On the trial the jury found a verdict for the plaintiffs for $831.72, with 8 per cent. interest, but not naming the time from which interest was to run. The defendant made a motion for a new trial on eight grounds, the first four of which attack the verdict as not sustained by the evidence, and is contrary to law. The eighth ground attacks the verdict as indefinite, in that it fails to find from what time interest should begin to run. The other grounds need not to be set forth.

In granting the motion for a new trial, the circuit judge did not specify any particular ground thereof as being sustained and thereby in effect sustained each of them. If the trial judge, in the exercise of a sound judicial discretion, might have granted the motion on any one of its grounds, this court should not disturb the judgment. Reddick v. Joseph, 35 Fla. 65, 16 So. 781; Allen v. Lewis, 43 Fla. 301, 31 So. 286. In the case of Farrell v. Solary, 43 Fla. 124, 31 So. 283, this court laid down the rule, which it has subsequently followed, viz.: 'A trial court should not grant a new trial on the ground that the verdict is not supported by the evidence where there is material conflict in the evidence, unless the weight of the testimony so clearly preponderates against the verdict found as to require its annulment in order to meet the demands of justice. But trial courts, of necessity, are vested with a discretion in granting or withholding new trials. And where they grant one on the ground that the evidence does not sustain the verdict in a case in which the evidence is conflicting upon a material issue, an appellate court,' acting under ...