Delco Light Co. v. John Le Roy Hutchinson Properties

• Decision Date: 04 March 1930
• Citation: 99 Fla. 410,128 So. 831
• Parties: DELCO LIGHT CO. v. JOHN LE ROY HUTCHINSON PROPERTIES.
• Court: Florida Supreme Court

128 So. 831

99 Fla. 410

DELCO LIGHT CO. v. JOHN LE ROY HUTCHINSON PROPERTIES.

Florida Supreme Court, Division A.

March 4, 1930

Rehearing Denied April 17, 1930.

Error to Circuit Court, Indian River County; Elwyn Thomas, Judge.

Action of replevin by the Delco Light Company against the John Le Roy Hutchinson Properties.Judgment for defendant, and plaintiff brings error.

Reversed.

Syllabus by the Court.Headnotes by Ellis, J.

SYLLABUS

In an action of replevin for the recovery of certain refrigerator machines, called 'frigidaires,' sold under a conditional sales contract where it is alleged that the purchaser has failed to comply with the conditions of payment, a defense set up by special plea that the plaintiff agreed to install the machines and appurtenances in an apartment house owned and operated by the defendant, but that the plaintiff did not properly install the machines but did so in such a negligent and careless manner that they caused noxious and poisonous gasses to escape in the apartments rendering them uninhabitable and causing annoyance and inconvenience to the tenants, which plea concludes with an averment of injury and damages to the defendant, is not held to be either valid or invalid.Justices WHITFIELD, BUFORD and ELLIS agree that it is valid; Chief Justice TERRELL, and Justices BROWN and STRUM agree that it is invalid.

Syllabus by the Court.

Where a plea of questionable validity is met by a demurrer which is overruled and later by joinder of issue, but both parties ignore the plea and no evidence is taken under it and the court directs a verdict for the defendant under the general issue, the error, if any, in overruling the demurrer to the plea is harmless.

Where evidence is taken to establish the validity of a document executed by a corporation under its seal by showing that the impression of a seal upon the document is the impression of the corporation's seal, and a witness testifies that he had seen the corporation's seal and the witness is then shown the impression of the seal upon the document and asked 'Is this the corporate seal' of the corporation, and answers in the affirmative, held to be evidence of the formal character of the document.

A plea of the general issue in replevin denies the plaintiff's title to the property in a qualified sense only, not in the sense that the action is one merely to try title as distinguished from right of possession.

The action of replevin is entirely statutory in this state, its purpose being to recover possession of chattels and damages for their detention and plaintiff must show right of possession in himself.

The gist of the action of replevin is not the taking of the property, but rather the wrongful detention of it and the plaintiff's right to immediate possession.

Under the plea of not guilty, in an action of replevin, the defendant may give any evidence of special matter which goes to show that the plaintiff is not entitled to the possession of the property replevined.The plaintiff must recover, if at all, upon the strength of his own right of possession.

Syllabus by the Court.Additional Headnotes by Brown, J.

Strictly speaking, a plea of set-off is a counter demand which a defendant holds against a plaintiff, arising out of a transaction extrinsic of plaintiff's cause of action, the object of which is to offset in whole or in part plaintiff's demand, or, if the amount of the set-off exceeds that demand, to obtain judgment for the excess.It is in the nature of a cross-action.

Syllabus by the Court.

The object of a plea of recoupment is to rebate or recoup in whole or in part the claim sued upon, and is based upon some right resulting to the defendant, arising out the same transaction which forms the basis of the plaintiff's suit.

We have no statute providing for pleas of counterclaim in law actions in this state.The defendant must either use the plea of recoupment or of set-off, according to which may be appropriate to the facts pleaded.

A plea of set-off is not allowable, in an action of replevin, in the ordinary sense in which it is allowable in other forms of action, but a defendant may plead and prove a claim for damages against the plaintiff arising out of the same transaction by way of recoupment against the plaintiff's claim for damages for detention of the property.

Replevin is a possessory action.The title to the property detained is not primarily involved.The right of possession may be in one person and the title in another.But unless there has been some severance of the right of possession from the legal title, the holder of the title has the right of possession as the right of possession usually goes with ownership.But the plaintiff must show right of possession when suit was brought, and it is sometimes necessary for plaintiff to show title in order to show his right of possession.

In replevin, the plea of the general issue, under our statute denies the plaintiff's right of possession, as well as the wrongful taking or detention.

Where the title of plaintiff is, under the evidence, relevant to the issue as to whether plaintiff had the right of possession, it is error to exclude proper documentary evidence of plaintiff's title.

COUNSEL

M. D. Carmichael and R. K. Lewis, both of West Palm Beach, for plaintiff in error.

Vocelle & Mitchell, of West Palm Beach, for defendant in error.

OPINION

ELLIS J.

The Delco Light Company, a corporation, brought an action of replevin against John Le Roy Hutchinson Properties, a corporation, to recover possession of twently ice producing or refrigerating machines called 'Frigidaires' and their attachments.

The machines were sold by Reed & Gallentine, a partnership, to Le Roy Hutchinson Properties.The transaction was evidenced by a written agreement called a conditional sales contract, in which it was provided that the title to the property should not pass to the purchaser until the amount agreed by the purchaser to be paid for the machines should be fully paid in cash.

The plaintiff's claim to the right of immediate possession of the 'Frigidaires' rests upon the following propositions: First, that the defendant, Le Roy Hutchinson Properties, had failed to pay for the machines; that there was a balance due upon the purchase price of $3,591.50 which the defendant refused to pay; that Reed & Gallentine had assigned the contract to General Motors Acceptance Corporation, which in turn assigned the contract to the plaintiff.

The defendant's defense rested upon the proposition that the seller of the machines agreed to install them in an apartment building in Vero Beach owned and operated by the defendant so that the machines could be used by the tenants in the apartments, but that the installation of the machines by the seller was so negligently and inefficiently done that noxious and poisonous gases escaped from them into the apartments making them uninhabitable, and causing annoyance and inconvenience to the tenants of the apartment and consequent injury and damage to the defendant.

The contract contained provisions to the effect that if the purchaser of the machines defaulted in any payment provided for under the terms of the contract, the seller might take possession of the machines, including the equipment and accessories, without demand.

The declaration alleged that the defendant wrongfully detained the machines and refused to surrender possession of them to the plaintiff.

There were two pleas to the declaration, one a plea of not guilty, and the other, what counsel for the plaintiff in error, plaintiff below, is pleased to call, a 'plea of counterclaim.'The second plea is here set out in full.It is as follows:

'That this defendant purchased from the plaintiff the property described in paragraph 1 of the declaration and that this defendant has paid to the plaintiff on the purchase price thereof the sum of $1551.50; that the plaintiff promised and agreed to install said frigidaires and compressors in an apartment building in the City of Vero Beach, Florida, owned and operated by defendant as an apartment house and the plaintiff promised and agreed to properly install said frigidaires and compressors so that the same could be used for the purpose of supplying ice and refrigeration for tenants in said apartments; that the said plaintiff did not comply with its said agreement, in that the said plaintiff did not properly install said frigidaires and compressors, but on the contrary installed the same in such a negligent and careless manner that the same could not be used for the purposes intended and caused noxious and poisonous gases to escape in the apartments, thereby making the same uninhabitable and caused great annoyance and inconvenience to the tenants thereof, all to the injury and damage of this defendant in the sum of $10,000.And this defendant, therefore, claims judgment against the plaintiff in the said amount of $10,000.'

The plaintiff demurred to the second plea upon the grounds that it constituted no defense, and that the facts averred were admissible under the general issue.There was a motion to strike the plea upon the same ground.The demurrer was overruled and the motion denied.The plaintiff then replied that it did not promise to install the frigidaires and compressors as averred.

The case came on for trial and the court held that the evidence of the plaintiff failed to show a valid assignment of the contract from the General Motors Acceptance Corporation to the plaintiff, in that the assignment was not shown to have been executed by any one authorized to execute the same on behalf of the General Motors Acceptance Corporation and that it did not appear that the purported assignment was made prior to the...