Tyner v. Woodruff
| Decision Date | 17 January 1968 |
| Docket Number | No. 911,911 |
| Citation | 206 So.2d 684 |
| Parties | Edgar D. (Jack) TYNER and the Travelers Indemnity Company, Appellants, v. S. A. WOODRUFF, Appellee. |
| Court | Florida District Court of Appeals |
Leon H. Handley, of Gurney, Gurney & Handley, Orlando, for appellants.
Harold A Ward, III, of Winderweedle, Haines & Ward, Winter Park, for appellee.
Defendants, Edgar D. (Jack) Tyner and The Travelers Indemnity Company, appeal a final summary judgment entered in favor of the plaintiff, S. A. Woodruff. We reverse.
This complaint arose out of an alleged breach in a citrus sales contract by which the plaintiff sold a citrus crop to the defendant, Tyner, a licensed citrus dealer under the Florida citrus code of 1949 (F.S.1963, Chapter 601, F.S.A.) who was bonded by the defendant, The Travelers Indemnity Company. Plaintiff made complaint to the commissioner of agriculture, and after a hearing an order was entered requiring Tyner to pay the sum of $6,102.17 to the plaintiff. The order, among other things, found an oral contract between the principals and further found a slowing down in the picking of the fruit by defendant, Tyner, and a failure to fulfill his promises to pick or pay, with a result that plaintiff was forced to sell the remaining merchantable fruit as salvage. The commissioner concluded Tyner had failed without reasonable cause to perform the contract. The award represented the difference between the $8,000.00 balance due under the contract and the $1,897.83 received by plaintiff for the remaining crop.
Not receiving payment, plaintiff instituted this action on the bond executed by Tyner as principal and Travelers as surety. In his complaint plaintiff alleged that by stopping his picking operation and refusing to pay the balance due under the contract defendant, Tyner, had breached the contract with resulting damage to plaintiff in the sum of $6,102.17. The defendants denied any breach of contract, denied any refusal to make payments and affirmatively asserted that the defendant, Tyner, had performed his agreement with plaintiff. In addition, a counterclaim was filed by Tyner alleging that he had resold the balance of the crop to a third party who was then prevented from picking the crop because of plaintiff's so-called salvage sale of it without notice to him. Tyner alleged that as a result of plaintiff's actions he was deprived of his potential profit from the resale and claimed damages. Plaintiff denied any resale by Tyner and denied that he had sold the crop without notice to Tyner.
Pursuant to motion the trial court entered an order of summary judgment for plaintiff, finding there to be no genuine issue as to any material fact. The final judgment appealed from followed. No depositions were taken or affidavits filed, although the record contains a certified copy of the commissioner's order. When the order was entered on January 22, 1965, F.S.1963, Section 601.66, F.S.A. provided that if any citrus dealer did not comply with an order for payment of money within the time specified, the person for whose benefit the order was made could file for those damages. The section further provided that '* * * In any suit between the same parties involving the same facts as were involved in a proceeding under this chapter, the findings and order of the commissioner hereunder shall be prima facie evidence of the facts herein stated * * *.'
Defendants contend certain material issues of fact raised by both the complaint and counterclaim and the answers thereto were not disposed of by the commissioner's order. Specifically those issues are as follows:
1. Whether Tyner had failed to perform his contract within a reasonable time, there being no time for performance fixed therein.
2. Whether Tyner had refused to perform his contract.
3. Assuming expiration of a reasonable time, whether plaintiff notified Tyner of his intention to resell the fruit before doing so.
The plaintiff argues these issues were disposed of within the terms and intent of the commissioner's order which the court could consider as prima facie evidence.
The first issue alone...
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