Vaughn-griffin Packing Co. v. Fisher

• Decision Date: 19 January 1940
• Citation: 141 Fla. 428,193 So. 553
• Parties: VAUGHN-GRIFFIN PACKING CO. v. FISHER.
• Court: Florida Supreme Court

193 So. 553

141 Fla. 428

VAUGHN-GRIFFIN PACKING CO. v. FISHER.

Florida Supreme Court, Division A.

January 19, 1940

Rehearing Denied Feb. 17, 1940.

Error to Circuit Court, Volusia County; H. B. Frederick, Judge.

Action by the Vaughn-Griffin Packing Company against Mrs. Annie R Fisher, to recover amount paid by the plaintiff to defendant upon a contract to purchase citrus fruit. To review an adverse judgment, the plaintiff brings error.

Affirmed.

COUNSEL John S. Lavin, of Orlando, for plaintiff in error.

John R Parkinson, of Daytona Beach, and E. A. Rano, of De Land, for defendant in error.

OPINION

THOMAS Justice.

The plaintiff in the circuit court, plaintiff in error here brought suit against the defendant and in its declaration claimed damages in the sum of $750 on the common counts for money received by the defendant for the use of the plaintiff; money paid by the plaintiff for the defendant at her request; money lent by the plaintiff to the defendant; and money found to be due from the defendant to plaintiff on accounts stated between them.

From the bill of particulars it appears that the real basis of the suit was to recover the sum of $500 paid by the plaintiff to the defendant on a contract to purchase citrus fruit.

The contract, which was introduced at the trial, or so much of it as is relevant to the determination of the questions presented to us, provided that the plaintiff would pay the defendant $1 for each standard field box of her citrus fruit produced during the season of 1937-1938 on her grove consisting of eighteen acres located in Volusia County, Florida. It was estimated in the contract that there would be about six hundred boxes of oranges, two hundred of grapefruit, one hundred and fifty of tangerines and three hundred of Valencias. The purchaser was allowed until the twentieth day of December, 1937, for the removal of 'midseason fruit' and until April first of the following year for the removal of the variety known as Valencias. It was further stipulated that the contract should apply only to merchantable fruit and that fruit defective from the causes specified including 'frost damage' should not be involved.

The result of the trial was a verdict for the defendant and consequent judgment, whereupon the plaintiff sued out a writ of error.

In the course of the trial it developed that in the early part of the month of December the area where the grove was located was visited by a freeze and a part of the citrus fruit mentioned in the contract was damaged but the record is not convincing that the entire crop was destroyed and, in fact, on the contrary shows that more than five hundred boxes of it were actually sold in the market.

The first question presented in the brief for the plaintiff in error is the one whether the court committed reversible error in refusing to give an instruction to the jury defining the expression 'frost damage'. The charge requested by the plaintiff on this subject contained but one sentence which would have referred, had it been given, to the correct interpretation of these words as they appeared in the contract, id est:

'No particular amount of frost damage was specified so you are instructed that this means any perceptible degree of frost damage.'

There was no appreciable error in the action of the trial court in denying this particular instruction or in failing to explan to the jury the degree of damage which would eliminate the affected fruit from the terms of the contract. In the first place, the words have an ordinarily accepted meaning and in such circumstances it is unnecessary for the court to offer a definition to the jury. See Ralph Wester v. State, Fla., 193 So. 303, decided this term.

As we have observed, the fruit which was to be purchased under the contract was that which was good and merchantable. Reading all the qualifications together, the purchaser was entitled to a product which was not damaged by frost to the degree that it was unmerchantable. The trial judge was quite explicit in his instructions and it cannot be successfully maintained that any injustice resulted to the plaintiff's case by reason of his failure to give the requested charge or the sentence of it which we have quoted.

The next contention is that there was error because witnesses were allowed to testify as to the condition of the citrus fruit as late as April thirteenth, 1938, or approximately four months after the visitation of the freeze. In view of the provision of the contract that fruit could be removed as late as...