Hillsborough Grocery Co. v. Leman

• Decision Date: 13 March 1906
• Citation: 51 Fla. 203,40 So. 680
• Parties: HILLSBOROUGH GROCERY CO. v. LEMAN et al.
• Court: Florida Supreme Court

40 So. 680

51 Fla. 203

HILLSBOROUGH GROCERY CO. v. LEMAN et al.

Florida Supreme Court, Division A.

March 13, 1906

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Action by William W. Leman and Charles H. Wright against the Hillsborough Grocery Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where any evidence has been submitted upon which the jury could lawfully find for one party, the trial court should not direct the jury to find a verdict for the opposite party.

In an action of assumpsit, where there are pleas of the general issue, and a plea of set-off, and the plaintiffs introduce no evidence, and there is evidence introduced by the defendant tending to support the plea of set-off, it is error for the trial court to instruct the jury to find for the plaintiffs the full amount of their claim.

COUNSEL D. C. McMullen, for plaintiff in error.

Gunby &amp Gibbons, for defendants in error.

OPINION

WHITFIELD J.

An action of assumpsit upon common counts was brought in the circuit court for Hillsborough county by the defendants in error against the plaintiff in error. The defendant, the Hillsborough Grocery Company, filed the following pleas: (1) That it never was indebted as alleged; (2) that it did not promise as alleged; (3) that the plaintiffs at the commencement of this suit were and still are indebted to the defendant upon a promissory note, for the sum of $400 principal, with interest at the rate of 8 per cent. per annum from the 1st day of June, A. D. 1904, and for money payable by the plaintiffs to the defendant for goods, wares, and merchandise sold and delivered to the plaintiff by defendant at the request of plaintiffs for the sum of $400; and for money found to be due from the plaintiffs to the defendant on account stated between them in the sum of $400, which amounts the defendant is willing to set off against the plaintiff's claim. The record proper contains a replication to the third plea as follows: The plaintiffs 'for replication to the third plea of the defendant say that, before the institution of this suit the plaintiffs were insolvent and offered as a settlement of their debts to their various creditors including the Hillsborough Grocery Company, the defendant in this cause, the sum of 30 cents of the dollar, and that the said defendant, the Hillsborough Grocery Company, accepted said offer of 30 cents, and received the money therefor, in full settlement, and that thereby the said plaintiffs paid to the said defendant all claims of every kind and character that the said defendant had or held against the said plaintiffs, including said promissory note mentioned in said defendant's third plea, and that the said suit brought by the said plaintiffs against the said Hillsborough Grocery Company, the defendant, was for goods, wares, and merchandise sold to said defendant after it had accepted said offer of settlement.'

The following rejoinder to such replication appears in the record proper: 'Although defendant admits it accepted the offer of plaintiffs to pay to defendant the sum of 30 cents on the dollar in settlement of its claim against plaintiffs, and received the money thereon; defendant alleges that said settlement was procured by the representations made on behalf of plaintiffs that they were settling with their various creditors on the basis of 30 cents on the dollar, and that no creditor of plaintiff was receiving a preference whereas without the knowledge or consent of defendant, the Exchange National Bank, one of plaintiff's creditors, was paid the sum of 50 cents on the dollar in settlement of said bank's claim against plaintiffs, which settlement with said bank was contrary to the representations made to defendant, and upon which defendant agreed to accept the said 30 cents on the dollar in settlement of its claim against said plaintiffs, which was a fraud upon defendant, and rendered the settlement between plaintiffs and defendant null and void.'

The...