Sullivan v. Brown
| Decision Date | 11 February 1914 |
| Citation | 64 So. 455,67 Fla. 133 |
| Parties | SULLIVAN et al. v. BROWN. |
| Court | Florida Supreme Court |
Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.
Action by L. S. Brown, doing business, etc., against Kate G Sullivan as executrix, and others. Judgment for plaintiff and defendants bring error. Affirmed.
Syllabus by the Court
A demurrer to evidence is a pleading, and should be made a part of the record proper.
Where it is desired to have a review of the ruling of the court on a demurrer to evidence, the demurrer and the ruling thereon should be incorporated in the transcript of the record proper, and error duly assigned thereon.
Where a real estate broker procures a binding contract of sale, he is entitled to his compensation if he acted in good faith.
Where the owner of the land refers the broker to the tax books for a description of the lands to be sold, the owner is bound by the information obtained from the tax books, when the broker acts in good faith and does not mislead.
COUNSEL John B. Jones, of Pensacola, for plaintiffs in error.
Reeves Watson & Pasco and Sullivan & Sullivan, all of Pensacola, for defendant in error.
This action, brought to recover broker's commissions for a land sale, was tried on a common count as follows: 'For further cause of action the plaintiff says that at the time of the commencement of this suit the defendants had been duly appointed and qualified as executors of the last will and testament of M. H. Sullivan, deceased; that prior to the institution of this suit, to wit, on May 3, 1910, the said M. H. Sullivan, deceased, was indebted to this plaintiff in the sum of $3,250, for work done and labor performed, by the plaintiff, for the said M. H. Sullivan, deceased, at his request; that neither the said M. H. Sullivan, deceased, nor the defendants have paid the same, or any part thereof, though often requested so to do.
'Wherefore, plaintiff sues and claims damages in the sum of $5,000.
The plea was never indebted as alleged. Verdict and judgment were rendered for the plaintiff, and the defendant took writ of error.
The bill of exceptions after stating the evidence adduced by the plaintiff, contains the following:
A demurrer to evidence is a pleading, and should be made a part of the record proper. It is usually interposed when all the evidence of the plaintiff in support of his declaration has been adduced. The demurrer is used to test the legal sufficiency of the plaintiff's evidence to sustain a judgment of the cause of action alleged. It is the duty of the demurrant to present to the court in appropriate form a full and fair statement of all the material facts that the evidence adduced proves or tends to prove favorable to the plaintiff on the issues in the cause. Until this is done the plaintiff is not required to join in the demurrer. Loose and indefinite statements of evidence are not sufficient, and the court should decline to consider a demurrer not properly interposed to the evidence. It is usual for the demurrant to state in the demurrer the grounds upon which the evidence is supposed to be insufficient to warrant a judgment thereon for the plaintiff. The effect of the demurrer is to admit as true all the facts that the evidence proves or tends to prove, and also to admit as true all the fair inferences and conclusions that may be drawn from the evidence favorable to the plaintiff. Conflicts in the evidence are not to be considered in determining the merits of the demurrer. If the demurrer to the evidence is sustained, the court discharges the jury, and renders judgment for the defendant on the demurrer. If the demurrer is overruled the cause may, under section 1446, Gen. Stat., proceed as though the demurrer had not been interposed. Where it is desired to have a review of the ruling of the court on a demurrer to evidence, the demurrer and the ruling thereon should be incorporated in the transcript of the record proper, and error duly assigned thereon. A demurrer to evidence should not be sustained where there is some evidence of all the facts essential to the plaintiff's cause of action, and where under any reasonable view that may be taken of the evidence it can be fairly considered as tending to support the plaintiff's case. See Mugge v. Jackson, 50 Fla. 235, 39 So. 157; Atlantic Coast Line R. Co. v. Dexter & Conner, 50 Fla. 180, 39 So. 634, 111 Am. St. Rep. 116; Skinner Mfg. v. Wright, 51 Fla. 324, 41 So. 28; Atlantic Coast Line R. Co. v. McCormick, 59 Fla. 121, 52 So. 712; Holland v. State, 39 Fla. 178, 22 So. 298; Fee v. Florida Sugar Mfg. Co., 36 Fla. 612, 18 So. 853; Hanover Fire Ins. Co. v. Lewis, 23 Fla. 193, 1 So. 863; Myers v. Hodges, 53 Fla. 197, 44 So. 357; Hinote v. Simpson & Co., 17 Fla. 444; Holbrook v. Allen, 4 Fla. 96; Loeffler v. City of West Tampa, 55 Fla. 276, 46 So. 426; Knight v. Empire Land Co., 55 Fla. 301, 45 So. 1025; Morrison v. McKinnon, 12 Fla. 552; Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 So. 71; Bird v. Jefferson County, 63 Fla. 88, 58 So. 28; Comforter v. City of Apalachicola, 63 Fla. 113, 58 So. 28; 6 Enc. Pl. & Pr. 453; 7 Standard Encyclopedia of Procedure, 4 et seq.
The transcript does not show that a demurrer to the evidence was properly presented. There is no such demurrer in the record proper, and the fact that the bill...
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... ... 204, 50 So. 641, 25 L. R. A. (N. S.) 736; ... Elliott v. Gamble, 77 Fla. 798, 82 So. 253; Blue ... v. Staten, 84 Fla. 274, 93 So. 686; Sullivan v ... Brown, 67 Fla. 133, 64 So. 455; Pensacola Finance ... Co. v. Simpson, 82 Fla. 368, 90 So. 381. But this court ... has never held that an ... ...
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