E.E. Alley Co. v. Ball

CourtUnited States State Supreme Court of Florida
Writing for the CourtDAVIS, J.
Citation136 So. 704,102 Fla. 1034
Decision Date29 September 1931
PartiesE. E. ALLEY CO. et al. v. BALL et al.

136 So. 704

102 Fla. 1034

E. E. ALLEY CO. et al.
v.
BALL et al.

Florida Supreme Court, Division B.

September 29, 1931


Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Suit by J. K. Ball against R. L. Johnson wherein an attachment was issued and levied From a judgment rendered against the E. E. Alley Company and its surety, the Continental Casualty Company, claimant of the attached property, the claimant and surety bring error.

Reversed for a new trial.

Syllabus by the Court.

SYLLABUS

A person who buys goods upon credit thereby impliedly, if not expressly, represents that he intends to pay for them. If, therefore, he then has no such intention, and a fortiori, if he has then a present intention not to pay for them, and conceals this fact from the seller, there is such a misrepresentation of a material fact as will entitle the seller to avoid the sale. This intention must be one existing at the time of the sale, and not merely one formed after the sale. It may be inferred from the circumstances.

A sale of goods obtained under false and fraudulent representations works no change of property or title while the goods remain in the hands of the purchaser, and such a sale may be avoided by the vendor, who is entitled to rescind the sale and maintain an action in replevin for his goods from the fraudulent purchaser.

Although a common-law cause is tried in the court below before the court without a jury, the same procedure should be followed on such trial as would be applicable if a jury were present.

Upon the trial of a cause at law before the judge without a jury, a motion for a directed verdict may be made on such trial, and such motion for a directed verdict is governed by the same principles of law and attested by the same considerations as would be applicable to such a motion if a jury were present.

Where it would have been error for a circuit judge to have granted a motion for a directed verdict on a question of law had a jury been present on the trial of an action at law, it is likewise error for the court to grant such motion for a directed verdict where the jury was waived and the trial had before the judge without a jury.

A judge should never direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained. In directing a verdict, the court is governed practically by the same rules that are applicable in demurrers to the evidence.

The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same. The court, in granting a motion for a directed verdict, rules upon a proposition of law, and does not determine thereby that a new trial may not be granted in the same case.

A party moving for a directed verdict admits facts stated in the evidence adduced and every conclusion favorable to his adversary fairly inferable therefrom. A verdict should not be directed for the plaintiff in attachment in a claim proceeding where some substantial evidence tends to prove the issue for the claimant.

COUNSEL [136 So. 705]

[102 Fla. 1035] Hampton & Greene, of Ocala, for plaintiffs in error.

A. P. Buie, of Ocala, for defendants in error.

OPINION

DAVIS, J.

This writ of error was taken to a judgment rendered against the claimant in a claim proceeding had under section 5283, Comp. Gen. Laws 1927, section 3430, Rev. Gen. St. 1920, and section 4517 to 4521, Comp. Gen. Laws 1927, sections 2830 to 2834, Rev. Gen. St. 1920. By stipulation the trial was had before the court without a jury, and at the conclusion of the claimant's evidence the plaintiff in attachment moved the court for a directed verdict. The motion was granted, and subsequently a new trial was denied. The appeal presents the question as to whether or not [102 Fla. 1036] the court below erred in directing a verdict for the original plaintiff in attachment, J. K. Ball, at the close of the claimant's case.

Ball's attachment was issued and levied on November 2, 1929, against certain hotel furnishings [136 So. 706] alleged to be the property of one R. L. Johnson, the defendant in a suit brought by Ball to recover the sum of $425.30 for labor and materials furnished by the plaintiff who was a contractor. The goods levied upon were in the possession of Johnson, who, as the operator of the Hoffman Hotel at Ocala, had ordered the same on October 16, 1929, from the E. E. Alley Company, the claimant. About the same time Ball, the plaintiff in attachment, had performed certain work and furnished certain material to said R. L. Johnson in connection with improving the hotel properties.

The question involved on the trial was whether or not Ball, as an attaching creditor of R. L. Johnson, acquired rights to the attached...

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17 practice notes
  • Reliance Life Ins. Co. of Pittsburgh, Pa., v. Lynch
    • United States
    • United States State Supreme Court of Florida
    • May 28, 1940
    ...verdict was error. 'But a motion for a directed verdict is the equivalent of a demurrer to the evidence in this state. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704. And since the evidence [144 Fla. 58] in support of a plea can have no greater effect as a proven defense in law than the plea......
  • Parsons v. Federal Realty Corp.
    • United States
    • United States State Supreme Court of Florida
    • December 15, 1931
    ...evidence to sustain the findings of the judge. Such is the case in a common-law action, when a jury has been waived. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704, 706. It appears from the evidence that a real estate boom syndicate composed of M. R. Gano, of Philadelphia, and others, in Aug......
  • Carter v. Florida Power & Light Co.
    • United States
    • United States State Supreme Court of Florida
    • May 23, 1939
    ...the evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Briggs v. Mann, 95 Fla. 31, 116 So. 2; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Wolfe v. City of Miami, 103 Fla......
  • Victor v. State
    • United States
    • United States State Supreme Court of Florida
    • August 1, 1939
    ...in evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.191......
  • Request a trial to view additional results
17 cases
  • Reliance Life Ins. Co. of Pittsburgh, Pa., v. Lynch
    • United States
    • United States State Supreme Court of Florida
    • May 28, 1940
    ...verdict was error. 'But a motion for a directed verdict is the equivalent of a demurrer to the evidence in this state. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704. And since the evidence [144 Fla. 58] in support of a plea can have no greater effect as a proven defense in law than the plea......
  • Parsons v. Federal Realty Corp.
    • United States
    • United States State Supreme Court of Florida
    • December 15, 1931
    ...evidence to sustain the findings of the judge. Such is the case in a common-law action, when a jury has been waived. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704, 706. It appears from the evidence that a real estate boom syndicate composed of M. R. Gano, of Philadelphia, and others, in Aug......
  • Carter v. Florida Power & Light Co.
    • United States
    • United States State Supreme Court of Florida
    • May 23, 1939
    ...the evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Briggs v. Mann, 95 Fla. 31, 116 So. 2; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Wolfe v. City of Miami, 103 Fla......
  • Victor v. State
    • United States
    • United States State Supreme Court of Florida
    • August 1, 1939
    ...in evidence adduced and every conclusion favorable to his adversary fairly and reasonably inferable therefrom. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.191......
  • Request a trial to view additional results

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