Burnett v. Soule

• Decision Date: 29 November 1919
• Citation: 78 Fla. 507,83 So. 461
• Parties: BURNETT v. SOULE.
• Court: Florida Supreme Court

83 So. 461

78 Fla. 507

BURNETT v. SOULE.

Florida Supreme Court

November 29, 1919

Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.

Action in replevin by G. W. Soule against G. W. Burnett. Verdict for plaintiff, motion for a new trial denied, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where there is conflicting evidence on the issues made, and the verdict is not manifestly against the weight of the evidence the court should not interfere and set aside the verdict of the jury.

An assignment of error, not argued, will be treated as abandoned.

It is not error to refuse a requested instruction, where the same points are covered by other instructions given.

In determining the correctness of instructions they should be considered as a whole, and in passing upon a single instruction or charge it should be construed in connection with all of the other instructions and charges bearing on the same subject, and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction must fail.

In an action of replevin, a verdict of the jury as follows 'We, the jury, find in favor of the plaintiff for,' here followed by a description of the property, separate valuation as to each item, and total aggregate valuation unobjected to when rendered, while not commended in matter of form, should be construed in connection with the issues made by the pleadings, the evidence in the cause, and the charge of the court, and when so construed it is equivalent to finding all the issues in favor of the plaintiff.

The plea of not guilty in an action of replevin puts in issue not only the right of the plaintiff to the possession of the property described in the declaration, but the wrongful taking and detention thereof, and a verdict of the jury as follows: 'We, the jury, find in favor of the plaintiff for,' here followed by a description of the property, separate valuation as to each item, and total aggregate valuation, unobjected to when rendered, while not commended in matter of form, is equivalent to finding the right of possession in the plaintiff, and is sufficient to support final judgment awarding possession to plaintiff.

COUNSEL E. M. Magaha, of Milton, and John P. Stokes, of Pensacola, for plaintiff in error.

Sullivan & Sullivan, of Pensacola, for defendant in error.

OPINION

BULLOCK Circuit Judge.

G. W. Soule instituted an action of replevin against G. W. Burnett in the circuit court of Santa Rosa county for various items of personal property, consisting principally of cattle and hogs, the declaration consisting of two counts. In the first count it is alleged that the defendant unlawfully took the goods and chattels of plaintiff, wrongfully detained the same, unlawfully withheld the possession thereof, and refused to deliver the same to plaintiff, and the plaintiff claims a return of said goods and property, or their value, and damages for detention.

The second count alleges that defendant came in possession of the goods and chattels of plaintiff; that he wrongfully detains the same, and unlawfully withholds possession thereof. Each count sets forth an itemized description of the property, with the value of each item separately, and alleges prior demand and refusal of the defendant to deliver possession. Upon executing the writ of replevin the property sued for was returned by the sheriff to the defendant on his forthcoming bond.

The defendant pleaded the general issue, 'not guilty,' and there was a trial by jury, resulting in a verdict for plaintiff. Motion for new trial was made and denied, and final judgment entered against the defendant. The defendant sued out writ of error, and seeks relief in this court from said judgment. For convenience we will hereinafter refer to the parties as plaintiff and defendant, as they were designated in the circuit court.

The assignments of error insisted upon in this court are as follows:

(1) The court erred in denying the defendant's motion for new trial.

(2) The court erred in refusing to give to the jury the special charge requested by defendant reading as follows:

'If you find from the evidence that this was an agreement that the defendant may at his option pay the plaintiff the value of the cattle as delivered to said defendant, and at the time of settlement said cash value was paid plaintiff, and other cattle belonging to defendant were valued at a cash value and given plaintiff as full settlement of claims, and he accepted the same, you will find for the defendant.'

(3) The court erred in giving special charges requested by the plaintiff. One of said special charges reads as follows:

'1a. If you find from the evidence in this case that there was a contract between the parties whereby the defendant was to pay certain moneys to the plaintiff, and receive the increase of certain cattle, and the defendant did not pay the agreed moneys, he would not under such contract alone be entitled to such increase.'

The other special instruction given at the request of the defendant is not referred to in brief of attorneys for plaintiff in error, and the assignment of error with reference thereto will be treated as abandoned.

Attorneys for plaintiff in error have not favored the court with the citation of any authorities in support of the several assignments of error, and their brief is limited to a mere statement of their contentions.

The evidence is conflicting and in many respects contradictory.

It has been frequently held by this court that where there is conflicting evidence on the issues made, and the verdict is not manifestly against the weight of the evidence, the court should not interfere and set aside the verdict of the jury.

The grounds of the motion for new trial based upon the insufficiency of the evidence to sustain the same were therefore properly overruled.

The remaining grounds of the motion for new trial will be considered in connection with the other assignments of error.

It is insisted that the refusal of the court to give the special instruction requested by the defendant, and which gave rise to the second assignment of error, was prejudicial, in that it denied the defendant the benefit of his theory of the case. This contention is not well founded, as the court of its own motion charged the jury substantially as requested in the rejected instruction requested by the plaintiff, as is shown by the following extract from the court's general charge:

'If you should find from the evidence in this case that the defendant was in possession of this property by reason of its being the increase of certain property that he was to have the increase of under a contract, and that he had complied with the contract, and that in a settlement under that contract this property was retained in settlement of this contract, each side entering into this settlement as what was entitled to under the contract, of course you should find for the defendant. If, however, in settlement of contracts between plaintiff and defendant, the plaintiff accepted or received what was held out to him to be all the property, and not knowing that there was any other property that belonged to him, but that the defendant surrendered property which he said was all the property, and you should further find that the plaintiff was also entitled to this property, then you should find for the plaintiff, or for such property as you find he was entitled to, and it is for you to find by a preponderance of the evidence whether the plaintiff is entitled to the possession of the property, or any portion of the property, and render your verdict accordingly.'

It has been frequently held by this court that there is no error in refusing special instructions upon matters covered by a general charge of the trial judge. Bennett v. State, 65 Fla. 84, 61 So. 127; Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 So. 367.

Applying this principle, in connection with the further established rule that the entire charge of the court must be considered in determining whether the giving or the refusal to give requested instructions constitutes error, we are of the opinion that this assignment is not well taken.

The third assignment of error is based upon the giving of special instruction at the instance of plaintiff hereinbefore quoted, and it is contended that when property is sold on credit the title passes, and that if the purchaser fails to pay the purchase price the seller's remedy is by action for the purchase price, and not to recover the specific property. We do not think that this charge bears the construction placed upon it by learned counsel, and especially when taken in connection with all the other charges given in the case.

The evidence discloses that the defendant had been a tenant of plaintiff for several years, and that for the first two years he was to pay certain money rental. There was also evidence regarding...