Gilliland v. Mercantile Inv. & Holding Co.
| Decision Date | 01 July 1941 |
| Citation | 147 Fla. 613,3 So.2d 148 |
| Court | Florida Supreme Court |
| Parties | GILLILAND v. MERCANTILE INV. & HOLDING CO. |
Rehearing Denied July 12, 1941.
McCune Hiaasen & Fleming, of Fort Lauderdale, for plaintiff in error.
Evans Mershon & Sawyer, Herbert S. Sawyer, Arthur S. Friedman and W. O. Mehrtens, all of Miami, for defendant in error.
This was an action for breach of contract. It comes here from involuntary nonsuit.
In 1930, defendant Mercantile Company and Highway Construction Company were owners of numerous properties. In 1931, the two companies caused to be formed a third company, to wit Hollywood, Inc. The purpose of the latter was to take title to the properties of the two former and liquidate same. By agreement, the Hollywood Company was to disburse to the defendant and Highway Construction Company, first, stated sums representing cash advances; second, stated sums representing liens; third, next in order to pay $500,000 to defendant and $2,000,000 to Highway Construction Company pro rata.
The contract, the breach of which forms the basis of this action, refers to the third item wherein defendant 'does assign and set over unto the said C. R. Gilliland, his heirs, legal representatives and assigns forever, a one-tenth (1-10) part of all sums payable to said Mercantile Investment & Holding Co. through Hollywood, Inc., a Florida corporation, under the third part or Paragraph I, of Paragraph eleven (11) of that certain contract between The Highway Construction Company Ohio, Inc., and Mercantile Investment & Holding Co. dated January 22, 1931, payable as, if and when the same shall be payable and paid under the terms of said agreement.'
The plaintiff sued in 1938. The theory of his action is that defendant by vexatious litigation brought against Hollywood, Inc., hindered and frustrated the liquidation and also in 1937 defendant breached the contract with plaintiff by selling and divesting itself of all right to receive any sum under the plan of liquidation.
The plaintiff received no payment under the assignment. The case was tried on pleas of first, general issue; second, lack of authority of defendant's president to execute the contract; third, no consideration and estoppel.
When plaintiff rested his case the defendant moved for a directed verdict because plaintiff had proved no damage. The trial judge announced that he would grant the motion and plaintiff suffered a nonsuit.
The plaintiff introduced no evidence of what he would have received had the liquidation been made as originally contemplated. He contends that the wrongful act of defendant making the fulfillment impossible dispensed with the necessity of such proof. He contends his action is for an anticipatory breach and that defendant's wrongful act has rendered proof...
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Schein v. Chasen
...(3d Dist.Ct.App.Fla.1963); James Talcott, Inc. v. McDowell, 148 So.2d 36 (3d Dist.Ct.App.Fla.1962).2 See Gilliland v. Mercantile Inv. & Holding Co., 147 Fla. 613, 3 So.2d 148 (1941).3 The speculative nature of possible corporate damage is compounded by the fact that trading in the company's......
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Schein v. Chasen
...(3d Dist.Ct.App.Fla.1963); James Talcott, Inc. v. McDowell, 148 So.2d 36 (3d Dist.Ct.App.Fla.1962).2 See Gilliland v. Mercantile Inv. & Holding Co., 147 Fla. 613, 3 So.2d 148 (1941).3 The speculative nature of possible corporate damage is compounded by the fact that trading in the company's......
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Tampa Electric Company v. Nashville Coal Company
...this purpose the defendants cite and primarily rely upon the decision of the Supreme Court of Florida in Gilliland v. Mercantile Inv. & Holding Co., 147 Fla. 613, 3 So.2d 148 (1941) in which the following statement was "The plaintiff introduced no evidence of what he would have received had......
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Perry v. Shaw
... ... and has long been approved in Florida. See Gilliland v ... Mercantile Inv. & Holding ... [13 So.2d 812] ... Co., 147 Fla ... ...