Leon v. Kerrison

• Decision Date: 01 March 1904
• Citation: 47 Fla. 178,36 So. 173
• Parties: LEON et al. v. KERRISON.
• Court: Florida Supreme Court

36 So. 173

47 Fla. 178

LEON et al. v. KERRISON.

Florida Supreme Court

March 1, 1904

In Banc. Error to Circuit Court, Duval County; Rhydon M. Call Judge.

Action by Alice M. Kerrison against Albert K. Leon and others. Judgment for plaintiff, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. A demurrer is properly overruled to a count in a declaration for conversion which follows the form laid down in paragraph 25, s 1058, Rev. St. 1892.

2. When, in a count of a declaration based on a contract under seal, it does not appear either from the contract, which is set out ipsissimis verbis in the count, or from the allegations of the count, that the plaintiff was a party to the contract, or that it was made for her benefit or on her behalf, a demurrer to the said count on the ground that it shows no right of action against the defendants on behalf of the plaintiff should be sustained.

3. Parol testimony is admissible to prove the ownership of a boat.

4. A letter from the engineering company which repaired the boat for the conversion of which the suit is brought, addressed to J. D. Kerrison, demanding payment for the repairs, and a note made thereon by Kerrison stating his views of the liability of the defendants for the repairs, and letters from one of the defendants to the attorney of the plaintiff, replying to letters of the latter, which are not a part of the record dealing with an agreement made subsequently to the date of the contract sued on, for the purchase of the boat, are irrelevant and incompetent evidence.

5. It is erroneous to reject testimony which tends to prove a plea upon which issue was joined, setting up a material defense.

COUNSEL Gibbons & Maxwell, for plaintiff in error.

The defendant in error sued the plaintiffs in error in the circuit court of Duval county. The declaration is as follows: '(1) The plaintiff, Alice M. Kerrison, by D. U Fletcher, her attorney, sued Albert K. Leon, B. Frank Manier Jr., and Cromwell Gibbons, for that whereas the defendants converted to their own use, and wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods, that is to say, one steam yacht, called the 'Artesia,' of the burden of thirty tons or thereabouts, with all the appurtenances, tackle, apparel, and furniture to the same belonging, all of the value of five thousand dollars ($5,000), to the plaintiff's damage of five thousand dollars ($5,000), and plaintiff claims five thousand dollars.

'(2) And plaintiff further sues the defendants for that whereas to wit, on May 25, 1899, plaintiff was the owner of certain property, that is to say, one steam yacht, called the 'Artesia,' of the burden of thirty tons or thereabouts, with her appurtenances, tackle, apparel, and furniture, of the value of five thousand dollars, and the said property being then in the custody and possession of one J. Davenport Kerrison, the defendants, with said J. Davenport Kerrison, executed their certain contract of charter and hiring of said property, in words and figures following, to wit: These articles of agreement made and entered into this 25th day of May, A. D. 1899, by and between J. Davenport Kerrison, master and part owner of steam yacht 'Artesia,' of the county of Duval, State of Florida party of the first part, and Cromwell Gibbons, A. K. Leon and B. F. Manier, Jr., of the county of Duval and state of Florida, parties of the second part, witnesseth: That the party of the first part has this day chartered and hired unto the parties of the second part, the steam yacht 'Artesia,' of the City of Jacksonville, Florida, and of the burden of thirty tons or thereabouts, with all the appurtenances, cables, anchors, chains, etc., which belong to the said steam yacht, for the term of one year from the 25th day of May, 1899, said vessel to be delivered at the port of Jacksonville, Florida, by the said party of the first part to the said parties of the second part.

'For the use of the said steam yacht the said Cromwell Gibbons, A. K. Leon and B. F. Manier, Jr., hereby agree and bind themselves to pay to the said J. Davenport Kerrison one dollar ($1.00).

"And it is further understood that the said Cromwell Gibbons, A. K. Leon, and B. F. Manier, Jr., shall be at all the expense of repairing, manning, and otherwise furnishing said steam yacht, for the period above stated, and shall return the same to the said J. Davenport Kerrison in as good condition as it is now, with the exception of ordinary wear and tear, and the possible damage resulting from bad weather.

"In witness whereof, the said parties to this agreement have thereunto set their hands and seals this 25th day of May, A. D. 1899, in deplicate. [Signed] J. D. Kerrison. [Seal.] A. K. Leon. [Seal.] Cromwell Gibbons. [Seal.] B. F. Manier. [Seal.] Witnesses: J. D. Cole, B. W. McAuley.'

'And the plaintiff says that the said J. Davenport Kerrison, under the terms and provisions of said contract of charter and hiring, then and there delivered said property to said defendants, and defendants received and accepted the same under the terms and provisions of said contract of charter and hiring. And the plaintiff says that defendants did not, at the expiration of one year from the 25th day of May, 1899, return said property, or any part thereof, to the said J. Davenport Kerrison, or to the plaintiff, but...