Trickey v. Stone, D-416
| Decision Date | 18 April 1963 |
| Docket Number | No. D-416,D-416 |
| Citation | 152 So.2d 748 |
| Parties | E. B. TRICKEY, Appellant, v. J. H. STONE, as Administrator of the Estate of Henry Stone, deceased, Appellee. |
| Court | Florida District Court of Appeals |
Truett & Watkins, Miami, Virgil Q. Mayo, E. E. Callaway, Blountstown, for appellant.
R. S. Pierce, Jr., Marianna, Clyde R. Brown, Bonifay, for appellee.
The appellant, plaintiff below, seeks review of a final decree dismissing his complaint in chancery.
He alleged a co-partnership existed between himself and one Henry Stone, now deceased, whereby the decedent in his lifetime agreed to finance the venture and the plaintiff to furnish his services as manager of a cattle business. The lands of the decedent, as alleged, were used as pasturage but form no part of the assets of the alleged partnership. It appears from the allegations in the complaint and admitted by the parties that the business assets at the death of the said Henry Stone consisted only of personal property. The plaintiff prayed that he as surviving partner take over the assets of the partnership and wind up its affairs through an appropriate accounting.
In dismissing the complaint the chancellor, after summarizing the proceedings, found as a matter of law the quantum of proof required to establish a verbal agreement of partnership to be greater than by a preponderance of the evidence. The final decree recites, '* * * the Court has accepted the proposition that a mere preponderance of the evidence is not sufficient, but that the more exacting requirement that the testimony and evidence as a whole must be clear, convincing, full, free of suspicion, definite and certain is the burden of the plaintiff in this cause.' The court then concluded that the plaintiff had not sustained the burden of proof under this rule of evidence.
The appellant argues two points: (1) the inapplicability of the rule to the factual situation in this case, and (2) the sufficiency of the evidence to sustain the verbal agreement of partnership.
The appellant contends that the correct yardstick to be used in the weighing of the evidence is the 'preponderance of the evidence rule.' The appellee counters that the preponderance of the evidence rule applies only to common law cases and not in equity, especially where a verbal agreement is relied upon and one of the parties is dead.
Ordinarily a plaintiff in chancery is required to sustain his case by no greater degree of proof than by a preponderance of the evidence. In Pinney v. Pinney, 46 Fla. 559, 35 So. 95, an equity cause alleging fraud, the court said that where a general denial is made the plaintiff must prove the material allegations by 'at least a preponderance of the testimony.' In Parken v. Safford, 48 Fla. 290, 37 So. 567, it was held, in a suit to reform a deed, that all the plaintiff is required to do as to the allegations not admitted is to 'maintain the issue so made by a preponderance of the evidence.' The case of Weissman v. Jureit, 132 Fla. 661, 181 So. 898, an injunctive proceeding, affirms the preponderance of the evidence rule as appropriate in equity cases.
It follows unless a higher degree of proof is required to establish an oral partnership, after the decease of one of the partners,...
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...a partnership and the liability of the defendant rested upon the [party asserting this oral agreement]."] ); and Florida (Trickey v. Stone, supra, 152 So.2d 748, 750 ["We, therefore, hold that the chancellor should, in determining the quantum of proof necessary for the plaintiff to sustain ......
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Milohnich v. First Nat. Bank of Miami Springs
...himself by means of an express contract. Bromer v. Florida Power & Light Co., Fla.1950, 45 So.2d 658, 13 A.L.R.2d 1227; Trickey v. Stone, Fla.App.1963, 152 So.2d 748. The second question discussed in the majority opinion is whether the complaint alleged recoverable damages for the violation......
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Batista v. Walter & Bernstein
...in these decisions should not be applied across-the-board to all actions based upon oral contracts is demonstrated by Trickey v. Stone, 152 So.2d 748 (Fla. 1st DCA 1963). There, in a thoughtful and persuasive opinion, the court squarely held that the preponderance of evidence, rather than t......
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...of the evidence is required to establish an oral contract; the evidence must be clear, full and free from suspicion. See Trickey v. Stone, Fla.App.1963, 152 So.2d 748; Shell's City, Inc. v. Westerman, Fla.App.1972, 257 So.2d 276. The record in the case sub judice reflects that appellants di......