Sullivan v. Lear

• Decision Date: 15 September 1887
• Court: Florida Supreme Court
• Parties: SULLIVAN and others, Ex'rs v. LEAR.

2 So. 846

23 Fla. 463

SULLIVAN and others, Ex'rs v. LEAR.

Florida Supreme Court

September 15, 1887

Appeal from Escambia county, First judicial circuit; ENOCH J. VANN Judge of the Third judicial circuit, presiding.

The declaration of the plaintiff, Lear, contains two counts. The first count alleges that appellants' testator, D. F Sullivan, purchased in his life--time from Lear a certain franchise and wharf privileges owned by the latter, and, in consideration therefor, agreed and promised to give Lear, who at the time of the sale, and at the commencement of the suit was a stevedore, the loading of one-third of all vessels consigned to him, Sullivan; but that neither the said Sullivan, nor the defendants, who are the executor and executrix of his last will and testament, have complied with said agreement, nor have they paid for the franchise and privileges, but refuse to do so. The second count sets up the purchase of the franchise and wharf privileges, and describes them as being on the extension of Adams street, in the city of Pensacola, and as having been granted to Lear by the city of Pensacola, and alleges that they were reasonably worth $5,000, and have not been paid for. Damages are laid in each count at $5,000.

The defendants put in two pleas: The first plea is to the whole declaration, and alleges that the plaintiff, at the time of the transfer and conveyance to Sullivan of the franchise and privileges mentioned, received from Sullivan the entire consideration therefor. The second plea is confined to the first count, and states that Sullivan did not, as alleged promise to give to the plaintiff the loading of one-third of the vessels consigned to him.

There was a trial by jury, resulting in a verdict for $2,000 in favor of the plaintiff. The defendants having moved for a new trial on the grounds (1) that the verdict was contrary to the charge of the court, and (2) contrary to the evidence, and the motion having been overruled, and judgment entered on the verdict, they appealed.

Upon the trial the plaintiff introduced as a witness one W. L. Wittich, who testified that he was a timber merchant, doing business at Pensacola, and the owner of a wharf; that he considered the wharf privilege or charter granted to the plaintiff by the city of Pensacola to be worth $5,000, and as valuable as one that witness himself had obtained from the city, and that he estimated his own as worth from $25,000 to $40,000. Upon cross--examination, he testified that his own wharf charter or privilege was obtained from the city for the consideration of his paying $10 rent annually; that he fixed the value of his wharf charter at $25,000, and plaintiff's like charter at $5,000, at least, because he (witness) had, by an expenditure of eight or ten thousand dollars, made a wharf property which would pay an interest on $30,000; but he could not state what was the value of plaintiff's wharf privilege in itself, and without reference to the improvements of which it was capable.

Wittich Menefee, another witness, testified that he was a timber merchant in Pensacola, and that he considered the wharf charter or privilege granted by the city to the plaintiff as worth $5,000; that he fixed this value upon it because a person who controlled ballast, by building a wharf under it, could derive a profit which would make the charter or privilege worth $5,000. Upon the cross--examination he said that he could not state 'the value of such privilege in itself without reference to the ability of the person owning it to build a wharf and control ballast to make business for it;' that there were several such persons, shipping merchants, about one dozen, he thought, in Pensacola.

Defendants' counsel moved to strike out so much of W. L. Wittich's testimony as stated that he considered the wharf charter or privilege granted to the plaintiff by the city as worth $5,000; because, or upon the ground, that the witness 'had based his said valuation on the profit of his own wharf built under witness' own privilege, and made profitale by the facilities which he possessed, and because the value of such charter or privilege was fixed by the rental at which it was procured from the city.'

Defendants' counsel made a similar objection and motion to the testimony of the witness Menefee, upon the ground that such witness based his valuation of the charter or wharf privilege of the plaintiff upon a value to be bestowed upon it by the capital and business of the party who might own it, and not upon its value as a mere charter or privilege to build a wharf.

Callaghan, a witness for the plaintiff, testified that he knew the place where the plaintiff had obtained a charter or privilege from the city of Pensacola to build a wharf; that he could not state the value of that charter or privilege, but that he had obtained a like charter or privilege to build a wharf at the foot of a street east of the street to which plaintiff's charter applied; that he had sold it for $1,000, but got really $800, with the reservation of the privilege of the right over the wharf. Upon cross--examination, he stated that he had obtained his charter from the city of Pensacola for an annual rent of $10. Defendants' counsel objected to, and moved to strike out, so much of the testimony of the witness as stated the price at which he had sold his wharf charter or privilege, because it was not admissible testimony of the value of the charter or privilege granted by the city to the plaintiff. The circuit judge denied the above motions to strike out testimony, and counsel for defendants excepted to his rulings.

An ordinance of the city of Pensacola passed January 18, 1882, and approved the next day, authorized Lear, his associates, heirs, and assigns, to establish and erect a wharf extending into the bay from the termination of Adams street into the channel of the bay. The wharf was to be 'commenced' within six months from the passage of the ordinance, and to be of a width not less than 20 feet, nor greater than the width of Adams street; and exclusive wharf privileges on said wharf are given by it to Lear, his associates, heirs, and assigns, except that property holders on each side shall not be excluded from said wharf. It also gives Lear, his associates and assigns, full power to demand and receive wharfage from all vessels, barks, flats, lighters, and steam--boats, loading or unloading or attached to said wharf, and for all goods deposited on or taken from or over said wharf. No drays, carts, vehicles, or pleasure carriages, transporting goods or merchandise, on or from the wharf, are, however, to be charged wharfage on such wharf. Lear, his associates, heirs, and assigns, are, in consideration of the erection of said wharf, to have exclusively the privileges set forth in the ordinance; he or they paying to the city the yearly sum of $10. At the expiration of 25 years the city is to have the privilege of purchasing said wharf at such valuation as may be determined upon by three arbitrators,--one to be appointed by the city, one by Lear, his associates, heirs, or assigns, and the third to be chosen by the two arbitrators thus appointed.

The deed executed by Lear to D. F. Sullivan bears date January 19, 1882, and, 'for value received of D. F. Sullivan,' conveys and assigns to the later, his heirs and assigns, all the right, title, and authority granted by said city through or by said ordinance, to establish and erect a wharf at the termination of said street, as well as all the other rights, privileges, and franchises connected therewith, vested and conferred by such ordinance.

The plaintiff had at the outset of the trial testified that he was a stevedore, engaged in loading ships in the port of Pensacola, and that there were consigned to D. F. Sullivan, from 1882 to 1884, annually, from 80 to 100 vessels, and that the profit to the stevedores of loading them depended upon their size, but that the lowest rate of net profits for unloading them would be about $200 to the vessel.

Morton Hart had testified, upon plaintiff's behalf, that in 1882 he went down to the wharf with John Lear to see D. F. Sullivan, and that they there met Sullivan standing on a pile of lumber, and that Lear said to Sullivan, 'Here is the deed to that wharf,' and gave it to Sullivan. He referred to the wharf at the foot of Adams street, for we had just been talking about his selling that wharf to Mr. Sullivan, and that Sullivan said: 'All right, I will give you the loading of one-third of all my ships as long as my firm lasts.' Upon cross--examination, he said that he did not see or know the contents of the paper Lear had in his hand; could not say whether it was the deed made by Lear to Sullivan for the property or franchise he had from the city government granting the wharf privilege, but Lear said it was a deed to the wharf; that he had shortly before that got a charter from the city of Pensacola to build a wharf at the foot of Adams street; that he was not present when the deed from Lear to Sullivan was made.

The above is all the testimony in the case.

The errors assigned by appellant in this court are as to the action of the circuit judge in overruling the ...