Hollingsworth v. Norris

• Decision Date: 21 April 1919
• Citation: 77 Fla. 498,81 So. 782
• Parties: HOLLINGSWORTH v. NORRIS.
• Court: Florida Supreme Court

81 So. 782

77 Fla. 498

HOLLINGSWORTH v. NORRIS.

Florida Supreme Court

April 21, 1919

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Jewett L. Norris against G. S. Hollingsworth. Judgment for plaintiff, and defendant brings error. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

A special plea which sets up facts, all of which are admissible under the general issue, is improper, and should be stricken on motion.

An instruction to the jury upon the burden of proof, if correct in principle, cannot form the basis of an assignment of error.

The grouping of instructions in one assignment of error will prove fatal to the assignment if one of the instructions was correct.

Proper exceptions to the ruling of the court in admitting or rejecting evidence should be made; otherwise the assignment of error based upon such ruling will not be considered.

The plaintiff must recover, if at all, upon the case made by his declaration, and not upon some other case made by the evidence.

COUNSEL Leitner & Leitner, of Arcadia, for plaintiff in error.

W. C Bigger and Victor H. Knight, both of Tampa, for defendant in error.

OPINION

ELLIS J.

Jewett L. Norris brought an action against G. S. Hollingsworth upon a contract for services to be rendered in finding a purchaser of certain property belonging to Hollingsworth. The declaration alleged that the contract provided that the plaintiff should find a purchaser for the defendant Hollingsworth's property, or a party who was willing to exchange property with the defendant; that for this service the defendant was to pay plaintiff 2 1/2 per cent. upon a valuation of $75,000 for defendant's property; that the plaintiff found and produced to the defendant a party who was ready, able, and willing to exchange property with the defendant at the valuation agreed upon; that the defendant and the party so found and produced by the plaintiff did agree among themselves upon an exchange of property, but the defendant has refused to pay to the plaintiff the compensation agreed upon for the service. There were also two common-law counts for work done and account stated. The defendant pleaded the general issue, and in a third special plea set up that the agreement between the plaintiff and defendant provided that the plaintiff should receive $250 in money and a lot from among those which the defendant was to acquire from the purchaser, which lot was to be conveyed to the plaintiff when the defendant himself acquired title; that the exchange had never been effected, and the defendant was not therefore in position to make a deed to the plaintiff. This plea was stricken upon the ground that the facts set up were provable under the general issue. Evidence of such matters was received at the trial. The striking of this plea constitutes the basis of the seventh assignment of error.

It is urged by counsel for plaintiff in error that the plea should not have been stricken because the plea comprehended 'more than the general issue,' because it showed what the contract was as entered into between the parties, and thus amounted to more than a mere denial that its terms were as alleged in the declaration. We think this criticism is not sound. The plaintiff recovers, if at all, upon the case made by his declaration. See Florida Fire & Casualty Ins. Co v. Hart, 73 Fla. 970, 75 So. 528. In this case he bases his action upon the contract which he set up in the declaration. The plea avers evidentiary facts to establish the ultimate fact that the contract entered into between the parties was not as it was alleged in the declaration. The plea of the general issue is a denial of the making of the contract as alleged, or of the matters of fact from which the contract may be implied by law. See Porter v Ferguson, 4 Fla. 102; Huling v. Florida Savings Bank, 19 Fla. 695. Therefore the third plea set up the same defense as the general issue under which he was allowed to introduce in evidence all the facts which he set up in the third plea. See Little v. Bradley, 43 Fla. 402, 31 So. 342; Wade v. Doyle, 17 Fla. 522, text 531. Under the rule as established in this state the motion to strike the plea upon the ground that the facts averred therein were admissible in evidence under the general issue was properly granted. The plaintiff's counsel say in their brief that the defendant should have been permitted to show what the contract was rather than show what it was not. This distinction is not apparent, because in showing what the contract in reality was, assuming it to have been as averred in the plea, he thereby showed that it was not as alleged in the declaration. We can perceive no benefit to be obtained by the defendant in this case from laboring under a supposed burden of proof which it was not necessary for him to carry. The seventh assignment of error is therefore not sustained.

The court instructed the jury as follows:

'Gentlemen of the jury, this is a case where the plaintiff is suing to recover a commission from the defendant for the sale or exchange of real estate belonging to defendant. In order for the plaintiff to be entitled to recover, it will be necessary for him to prove by a preponderance of the evidence some one of the three counts of his declaration. By a preponderance of the evidence is meant the weight of the evidence--that is, the overbalancing power.'

This instruction and those numbered 4 and 5 are assigned as the third error. There was no evidence before the court which would have justified recovery under the common counts, therefore the instruction in so far as it was intended to apply to such counts was erroneous, if at all; but we think that the error, if any, was without injury to the defendant, because, as there was no evidence in support of the two common counts, or either one of them, it cannot be assumed that the jury deemed them or either one of them to have been proved by a preponderance of the evidence. But the charge correctly stated the plaintiff's burden to be proof by a preponderance of the evidence of at least one of the three counts; he having declared in three counts upon one cause of action. If there was no evidence to support either count, it could not be said that the charge was wrong, although it may have been unnecessary.

We will not discuss instructions numbered 4 and 5 because the grouping of the three instructions in one assignment of error will result in the failure of the assignment...