West Coast Fruit Co. v. Hackney
| Decision Date | 01 August 1929 |
| Citation | 98 Fla. 382,123 So. 758 |
| Parties | WEST COAST FRUIT CO. v. HACKNEY. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pinellas County; Freeman P. Lane, Judge.
Action by the West Coast Fruit Company against W. L. Hackney. Judgment for defendant, and plaintiff brings error.
Reversed and remanded.
Syllabus by the Court
Commonlaw right to take nonsuit any time before verdict has been restricted by statute (Comp. Gen. Laws 1927, § 4357). Rule at common law that nonsuit could be taken at any time before verdict has been limited by Comp. Gen. Laws 1927, § 4357 providing that no plaintiff shall take nonsuit on trial unless he do so before jury retires from the bar.
Presence of plea of set-off held not to deprive plaintiff of right to take nonsuit before jury retired (Comp. Gen. Laws 1927, § 4357). Under Comp. Gen. Laws 1927, § 4357, presence of plea of set-off held not to deprive plaintiff of right to take nonsuit before jury retired.
Zetrouer & Ware and Kelly & Casler, all of Clearwater, for plaintiff in error.
J. C Davant, of Clearwater, for defendant in error.
Plaintiff in error brought suit against defendant in error for damages for the alleged breach of a contract of sale of a crop of oranges and grapefruit. After demurrer to the declaration was overruled, the defendant interposed several pleas, among them a plea of the general issue and one of set-off. On the trial after plaintiff had offered his evidence, defendant moved for an instructed verdict in favor of the defendant on the ground of variance between the pleading and proof, in that the declaration alleged a contract to sell the entire crop of oranges and grapefruit, whereas the proof showed a contract to sell only the 'merchantable' fruit. The court intimated that it would grant the motion. Plaintiff then asked leave of the court to amend its declaration by interlining the word 'merchantable' at the proper place, so as to make the pleading and evidence correspond. This motion was denied. Thereupon plaintiff moved the court to permit plaintiff to take a nonsuit. This motion was also denied, and the jury instructed to find a verdict for the defendant. This was done, and judgment rendered thereon, which is now before us on this writ of error. No testimony was offered or sought to be offered by the defendant under his plea of set-off, and the instructions, verdict, and judgment made no reference thereto.
The controlling question presented is whether the court erred in refusing plaintiff's motion to be allowed to take a nonsuit.
At common law a nonsuit could be taken at any time before verdict. 6 Encyc. Pld. & Prac. 836. This right has been limited by our statute, which provides that 'no plaintiff shall take a non-suit on trial unless he do so before the jury retire from the bar.' Section 4357, Comp. Gen. Laws 1927.
The rule is well settled in this jurisdiction that the presence of a plea of set-off does not deprive the plaintiff of his right to take a...
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... ... Mason Hotel & Inv. Co., 71 Fla. 469, ... 71 So. 540; West Coast Fruit Co. v. Hackney, 98 Fla ... 382, 123 So. 758; Pitt v ... ...
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