McCall v. Sherbill
| Decision Date | 04 September 1953 |
| Citation | 68 So.2d 362 |
| Parties | McCALL v. SHERBILL. |
| Court | Florida Supreme Court |
R. J. Marshall, Palmetto, for appellant.
Dewey A. Dye and Dye & Dye, Bradenton, for appellee.
This suit is for damages for breach of a contract with reference to hauling watermelons. The verdict was entered for the appellant for the sum of $2,000. On a motion for new trial, by the appellee, which contained the following ground: the Court made an order reading, in part, as follows:
'* * * the Court finding that the Jury verdict for Plaintiff was supported by the evidence, but that the evidence as to the amount of damages was so uncertain, speculative, remote, contingent and inconclusive as not to support or justify the verdict rendered, and further the Court being advised in the premises.
'It is ordered, adjudged and decreed that a new trial based on grounds numbered 1 to 5 inclusive of Defendant's Motion for New Trial be and the same hereby is denied and said grounds held for naught, and
'It is further ordered, adjudged and decreed that Defendant's ground number 6 for a new trial be and the same hereby is sustained, and a new trial be and the same hereby is granted on the issue of the amount of damages, and to that extent a new trial is granted for the purpose of resubmitting the cause to a Jury to determine the amount of recovery in behalf of Plaintiff.'
The only question presented is the correctness of the order of the trial judge in granting a new trial upon ground number 6 of the motion for new trial hereinabove quoted in full.
The contract between the parties was oral. There were some conflicts as to the terms of the contract but these conflicts were settled by the jury and as to that part of the verdict, the same has been approved by the Circuit Judge. It is certain that the appellee hired the appellant and agreed to pay him $10 per load for each load of watermelons sent out by the appellee. The appellant also claimed that the contract provided for reimbursement of all expenses of his truck while in appellee's employment. It was alleged that after the parties agreed to the terms of the contract, appellant went to work for the appellee and was paid the $60 per week expense money but that appellee failed to pay the appellant the sum of $10 per load for 200 loads of watermelons during the season, except for six loads. The real dispute is concerning the number of loads.
The contract is certain and definite that there should be paid $10 for each load. Neither of the parties kept any accurate records of the number of loads and at the trial, it is shown, that they depended upon their memories. The appellant testified in his own behalf and was asked the following question:
and gave the following answer:
When the appellee was on the witness stand, the following questions were asked and answers given:
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...123 Fla. 2, 166 So. 215, 217 (1936). The impossibility of calculation with "absolute exactness" will not defeat recovery. McCall v. Sherbill, 68 So.2d 362 (Fla.1953). Although future damage awards in the form of "lost profits" are often difficult to prove and inherently suspect, Florida has......
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