Thomas v. Dickinson
| Decision Date | 29 April 1947 |
| Court | Florida Supreme Court |
| Parties | THOMAS v. DICKINSON et al. |
Appeal from Circuit Court, Holmes County; E. C. Welch Judge.
Cecil A Rountree, of Chipley, for appellant.
Clyde R Brown, of Bonifay, for appellees.
This is an appeal by the plaintiff from a final decree of foreclosure of a chattel mortgage and a statutory lien for rent and crop advances. A decree pro confesso was entered against the mortgagor, Dickinson. The Court, after hearing the testimony, dismissed the amended bill as to the defendants, J. D. Heath, trading as Heath Mercantile Company, and Greenwood Products Company, being of the opinion 'That the plaintiff, by his laches, lack of diligence and accepting a portion of the sale proceeds of the peanuts referred to in the pleadings and evidence, is estopped from proceeding against the defendants as to whom said bill is dismissed.' Plaintiff-appellant contends that the Court erred in dismissing the bill as to the named defendants, in that the record discloses no waiver of the lien, laches or estoppel.
This case was before this Court on a former occasion. Thomas v. Dickinson. [1] The Court then denied a petition for certiorari, which sought to quash and order granting a motion to dismiss the amended bill as to the defendant, Fisher Hardware Company, Cawthon State Bank and The First National Bank of DeFuniak Springs.
Thomas, the plaintiff, as landlord, made a farming rental deal with Dickinson, a Dickinson, under date of February 25, 1944, executed to Thomas a combination note and mortgage encumbering certain farm products grown by Dickinson on the Thomas farm and other personal property. A peanut crop was harvested. It was picked by a machine owned by Thomas. With the knowledge of Thomas, it was sold by Dickinson to Heath, trading as Heath Mercantile Company, who acted as agent for Greenwood Products Company. Heath made out a check to Dickinson for the aggregate value of the peanuts sold. This was a check drawn on the Greenwood Products Company, for whom Heath acted as agent. Dickinson immediately endorsed this check over to Heath. Heath, knowing of the interest of Thomas, then delivered to Dickinson a check made out in pencil to Dickinson and Thomas for $697.75, the net value of the peanuts, a check to one Spears for the hauling, and a check to Thomas for picking the peanuts. The checks were dated October 30, 1944.
Dickinson returned to Thomas and delivered to Thomas the check covering the cost of picking the peanuts. Dickinson falsely stated to Thomas that no final settlement had been made in connection with the peanut sale, as the total weights had not yet been determined. Heath never communicated with Thomas as to the sale.
Dickinson altered the check for $697.75, by erasing, or partially erasing, the name of Thomas, who appeared as one of the payees. Thomas had no knowledge whatsoever of the check made out to him and Dickinson for the peanuts, and no knowledge of the alteration of the check. Dickinson cashed the check through the Fisher Hardware Company, who endorsed it to the Cawthon State Bank, who on November 4, 1944, endorsed it to the drawee, The First National Bank, in DeFuniak Springs, which concerns are not now before the court. The account of Heath was charged with the check. While the date of the return of the check to Heath does not appear in the evidence, it may be fairly inferred that, in the due course of banking, The First National Bank of DeFuniak Springs returned the check to Heath with the usual monthly bank statement soon after December 1, 1944.
Thomas made two trips to see Heath about payment for the peanuts, but could obtain no information from Heath or the secretary of Heath as to the consummation of the sale of the peanuts, or as to the manner in which Heath had made payment for the peanuts. Under date of January 24, 1945, Heath, in response to a letter from the attorney for Thomas, then disclosed that Heath had endeavored to make payment to Thomas, but that someone had tried to erase the Thomas name from the check and that the check had been cashed without endorsement by Thomas, even though the Thomas name could still be read on the check. Thomas filed suit March 19, 1945.
Heath, appellee citing 31 C.J.S., Estoppel, § 59, page 236, contends that Thomas is barred by an equitable estoppel. But the record here discloses no conduct on the part of Thomas whereby he was precluded from asserting his rights against Heath. Thomas did not harmfully withhold information as to his interest in the property nor was there any breach...
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In re Standard Jury Instructions—Contract & Business Cases
...must be under such circumstances that there are both a specific opportunity and a real apparent duty to speak.” Thomas v. Dickinson, 158 Fla. 819, 30 So.2d 382, 384 (1947). 3. “The ‘representation’ upon which an estoppel may be predicated may consist of words, conduct, or, if there is a dut......
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Richards v. Dodge
...be positive, but can consist of failure to act or, more particularly, failure to speak when under some duty to speak. Thomas v. Dickinson, 1947, 158 Fla. 819, 30 So.2d 382. See 12 Fla.Jur., Estoppel and Waiver, 997, 42-46 Examining the facts adduced on trial in light of the above enunciated......
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Lloyds Underwriters v. Keystone Equipment
...or, if there is a duty to speak, silence. See Head v. Lane, 495 So.2d 821, 824 (Fla. 4th DCA 1986); see also Thomas v. Dickinson, 158 Fla. 819, 30 So.2d 382, 384 (1947) ("[I]n order to work an `estoppel,' `silence[]' must be under such circumstances that there are both a specific opportunit......
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Travelers Ins. Co. v. Spencer
...will not operate to work an estoppel. Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2d DCA 1978); Thomas v. Dickinson, 158 Fla. 819, 30 So.2d 382 (1947). Section 627.727(1), as construed by the Wilson-Weingarten line of cases, places no duty upon the insured to initiate a req......