Britton v. Poore

• Decision Date: 20 April 1909
• Parties: BRITTON v. POORE et al.
• Court: Florida Supreme Court

49 So. 507

57 Fla. 45

BRITTON v. POORE et al.

Florida Supreme Court

April 20, 1909

Headnotes Filed May 17, 1909.

In Banc. Error to Circuit Court, Walton County; J. Emmet Wolfe Judge.

Action by J. F. Poore and W. A. Hood against W. H. Britton. Judgment for plaintiffs, and defendant brings error. Reversed.

COUNSEL

W. W Flournoy, for plaintiff in error.

Daniel Campbell & Son, for defendants in error.

OPINION

TAYLOR, J.

The defendants in error, as plaintiffs below, sued the plaintiff in error, as defendant below, in the circuit court of Walton county in an action for fraud and deceit, and recovered judgment, which is brought here for review by writ of error by the defendant below. The declaration in substance alleges that the defendant, through his agent, with the intention and for the purpose of inducing the plaintiffs to purchase from the defendant a large body of described lands in said Walton county, falsely and fraudulently represented to daid plaintiffs that said defendant owned and held in fee simple the said described lands; that said representation by said defendant was false, and that said defendant knew it to be false when made, and, so knowing, made the same for the purpose of inducing said plaintiffs to enter into a contract with said defendant for the purchase of said land; and that plaintiffs, believing said representations to be true, and believing that said defendant was the owner and held the title in fee simple to the said land as represented as aforesaid, and relying thereon, and being induced thereby did enter into a contract with said defendant to purchase said land and pay said defendant as a consideration therefor the sum of $76,005.85, and did then and there, in pursuance thereof and in part payment therefor, pay to the said defendant the sum of $2,000, and did thereafter, and before any other or further payments had been made, learn that said representation so made by said defendant was false, and that said defendant did not own, or hold the title, in fee simple or otherwise, to said land, but that the said land was owned and the fee-simple title thereto held, by another, whereby the plaintiffs were damaged,' etc. The declaration also contained the common count for money had and received by the defendant for the plaintiffs' use. The case was tried on the plea of the general issue, and a plea of never was indebted.

The defendant moved for new trial on the ground, among others that the verdict was not supported by the evidence. This motion was denied, and its denial is assigned as error. We think that the court erred in not granting this motion on the ground above stated, as there is a fatal variance between the allegata of the declaration and the evidence of the plaintiffs to sustain it. The declaration alleged the representation of the defendant to be that he owned and held the fee-simple title to the lands in question, and that they were induced by such representation to enter into contract with the defendant for the purchase of said land; but when J. F. Poore, the only one of...