Bowers v. Dr. P. Phillips Co.

• Decision Date: 29 August 1930
• Citation: 129 So. 850,100 Fla. 695
• Parties: BOWERS v. DR. P. PHILLIPS CO.
• Court: Florida Supreme Court

129 So. 850

100 Fla. 695

BOWERS v. DR. P. PHILLIPS CO.

Florida Supreme Court, Division B.

August 29, 1930

Error to Circuit Court, Polk County; Harry G. Taylor, Judge.

Action by the Dr. P. Phillips Company against J. H. Bowers. Judgment for plaintiff, and defendant brings error.

Affirmed.

ELLIS J., dissenting.

COUNSEL

Bryant & Trantham, of Lakeland, for plaintiff in error.

Huffaker & Edwards, of Bartow, and Akerman & Akerman, of Orlando, for defendant in error.

OPINION

BUFORD J.

In this case the defendant in error was plaintiff in the court below and will hereinafter be called plaintiff, and the plaintiff in error was defendant in the court below and will hereinafter be called defendant.

The parties entered into a contract for the purchase and sale of certain fruit. The contract was as follows:

'Fruit Contract.

'This agreement made and entered into this the 30th day of November, A. D. 1926, by and between Green Rives, as agent for Dr. P. Phillips Company, of Orlando, Florida, hereinafter designated as the buyer, and J. H. Bowers of Brunswick, Md., c/o Peoples Nat'l. Bank, hereinafter designated as the grower.

'Witnesseth: That the grower do hereby sell and convey to the buyer his entire crop of oranges, grapefruit and tangerines blooming in the year 1926 and merchantable at the time of picking on one grove located at Lots 11 & 12--Sec. 23--Lakeland Hg. on the following terms:

'In bulk for the total sum of Seventy-five Hundred & no/100 dollars ($7500) payment to be made as follows:

'$1000.00 on the signing of this contract

'$1000.00 Jan. 1st 1927

'Balance when fruit is picked.

'Said grower hereby acknowledges receipt of One Thousand and no/100 dollars ($1000.00) to apply on the purchase price of said fruit and to be deducted from the final settlement under this contract. Should the fruit not be taken by the Buyer the amount receipted for hereby shall be forfeited to the Grower as his sole liquidated damages hereunder.

'J. H. Bowers agrees to deliver to Dr. P. Phillips Co. Five Thousand (5000) boxes of Grapefruit for the $7500.00.

'In witness whereof we have hereunto set our hands and seals the day and year first above written.

--------

'J. H. Bowers

'Grove Owner or Agent.

'Witnesses: Green Rives, Agent for Dr. P. Phillips Co.'

The $1000 cash was paid upon the execution of the contract and the other $1000 was paid January 1st, as per terms of the contract. After the payment of the second thousand dollars and before the fruit was gathered, it was destroyed by a freeze. The seller, Bowers, did not deliver to the purchaser, Dr. P. Phillips Company, 5,000 boxes of grapefruit as he was bound to do under the terms of the contract. The plaintiff sued to recover the $2,000 together with interest thereon and also $2,500 for expected profits and $500 for expense in advertising the fruit for sale. The verdict was for $2,000 with interest and was so directed by the court.

The only question necessary for this court to determine is whether or not under the terms of the contract the plaintiff was entitled to recover the money which he had paid to the defendant.

The declaration was in ten counts. The first seven were the common counts. The eighth, ninth, and tenth counts are special counts in damages for breach of the contract. It will be observed that the contract contains the following clause, to wit:

'Said Grower hereby acknowledges receipt of One Thousand and no/100 dollars ($1000.00) to apply on the purchase price of said fruit and to be deducted from the final settlement under this contract. Should the fruit not be taken by the Buyer, the amount receipted for hereby shall be forfeited to the Grower as his sole liquidated damages hereunder.'

The contract also contains the following clause:

'J. H. Bowers agrees to deliver to Dr. P. Phillips Co. five thousand (5000) boxes of Grapefruit for the $7,500.00.'

These two clauses govern the construction of the contract, and the construction which must follow is that Bowers agreed to sell and deliver to Dr. P. Phillips Company 5,000 boxes of grapefruit for $7,500, and that he received at the execution of the contract $1,000 to be applied on the purchase price of the fruit and to be deducted from the final settlement under the contract, and he agreed that in the event Dr. P. Phillips Company did not take the fruit when tendered to it that he would accept the $1,000 paid as sole liquidated damages for the failure of Dr. P. Phillips Company to take the fruit. He then bound himself to deliver to Dr. P. Phillips Company 5,000 boxes of grapefruit, and it must be construed that these grapefruit were to be delivered during that fruit shipping season.

For causes not within the control of the plaintiff, the particular fruit contracted for was destroyed and could not be delivered and the defendant did not deliver any other fruit in lieu thereof, but it is alleged and proven that he failed and refused to deliver the 5,000 boxes of merchantable grapefruit.

It is insisted by counsel for the plaintiff in error that this case is of unusual importance to the citrus industry of Florida, and it may be, but it is chiefly important in that it shows the necessity for care which should be exercised by a grower in making and entering into contracts. The grower cannot expect the courts to make his contracts for him. He must expect to be bound by the contract which he makes, just as must every other individual transacting business, and if he makes a contract obligating himself to deliver so must fruit for a stipulated sum of money and receives a cash payment in consideration of the execution of such contract, he must deliver the fruit, or at least return the money so received. It is quite an easy matter for him to so frame his contract as to be under no obligation of this sort and to so frame the contract as to have the buyer assume the risk of any loss or damage to the fruit if such is the intention of the parties when the contract is made.

We think there is no reversible error exhibited by the record, and therefore the judgment should be affirmed. It is so ordered.

Affirmed.

WHITFIELD, P.J., and STRUM, J., concur.

TERRELL, C.J., and BROWN, J., concur in the opinion and judgment.

ELLIS, J., dissents.

CONCURRING

BROWN, J. (concurring).

I do not think that under this contract the title passed to the Dr. Phillips Company. The contract was to deliver 5,000 boxes of grapefruit, and elsewhere in the contract it was provided that the fruit should be 'merchantable,' at the time of picking. Neither of these provisions were or could be complied with the Bowers, but this was not the Phillips Company's fault. Under the authorities, the contract was still executory when the freeze occurred and the title to the fruit had not passed, so as to make the loss by the freeze fall on the Phillips Company. Tripp v. Wade, 82 Fla. 325, 89 So. 870; 24 R. C. L. 14, 18; 35 Cyc. 274. The seller not being able to deliver the identical property contracted to be sold, in accordance with the terms of the contract, and not having tendered the delivery of similar property in the place of it, if that could have been done under the contract, the purchaser was entitled to the return of the advance payments.

DISSENTING

ELLIS J. (dissenting).

I think that the contract is an executed contract of sale and that the happening of the freeze was an incident which relieved the plaintiff in error, Bowers, from the promise to deliver 5,000 boxes of grapefruit. Nor do I think that the clause wherein he agreed to deliver 5,000 boxes of grapefruit for the $7,500 converted the contract into an executory contract of sale.

The contract was executed on the 30th day of November, 1926. At that time the fruit from the 1926 bloom had formed on the trees and was nearing, if it had not reached, full maturity. It was not as if the contract was made before the trees put on their 1926 bloom and the fruit was not in existence but its formation and growth dependent upon favorable seasons to come. The fruit was already in existence hanging upon the trees in a state nearing, if it had not indeed reached, maturity.

Under such circumstances the contract operated as a severance of the fruit from the freehold and the fruit became personal property the title to which passed to the purchaser upon acceptance of the contract by him. Oranges, grapefruit, and tangerines produced by that grove were sold to the purchaser. The fruit was sold in bulk for the agreed price of $7,500. No time limit was placed upon the purchaser in which the gathering or picking of the fruit was required to be done. If the buyer refused to take it, the seller under another clause in the contract agreed to accept as his liquidated damages the $2,000 paid on the purchase price.

After the fruit was ready for the market but before it was gathered and removed from the trees, as it was the plaintiff's duty to do according to the averments of the first and second additional pleas which were eliminated on demurrer, 'severe cold weather intervened and damaged the fruit so that the same was rendered unfit for marketing,' whereupon the purchaser refused to take the fruit from the trees.

Now the theory on which the declaration is formed as set out in the tenth count is that on making the contract with the defendant the title to the fruit passed to the plaintiff, that is, that the contract was an executed contract of sale, for it is alleged that the plaintiff employed salesmen and went to considerable expense in advertising and selling the crop of grapefruit and did succeed in selling it to a person who agreed to buy it at the price of $10,000.

He thus exercised the right to sell that which he had acquired by his...