Whittington v. Stanton

• Decision Date: 16 April 1912
• Citation: 63 Fla. 311,58 So. 489
• Court: Florida Supreme Court
• Parties: WHITTINGTON v. STANTON.

58 So. 489

63 Fla. 311

WHITTINGTON v. STANTON.

Florida Supreme Court

April 16, 1912

Error ot Circuit Court, Escambia County; J. Emmett Wolfe, judge.

Action by G. R. Stanton against E. M. Whittington. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a written contract between two parties, even though it be under seal, provides among other things for a sale of sideboards for the period of three years with the privilege of states the details of delivery, thickness, etc., and provides that payment therefor shall be made on the 1st, and not later than the 10th, of each month, for stock furnished the previous month, to recover for such items, the plaintiff is not obliged to resort to an action of covenant, but may recover for them under the common counts in assumpsit.

Under a declaration upon an account stated, the cause of action is the agreement of the parties to pay the amount found to be due upon the accounting, and this may consist of various items, and may include some due upon a written instrument as well as upon oral agreement, and the evidence to support the account may be wholly in writing or wholly by parol, or in part by writing and in part by parol.

COUNSEL Reeves & Watson, of Pensacola, for plaintiff in error.

Jones &amp Pasco, of Pensacola, for defendant in error.

OPINION

HOCKER J.

Stanton the defendant in error, brought an action at law in the circuit court of Escambia county. The declaration contained only the common counts in assumpsit, one of which was 'for money found to be due from the defendant to the plaintiff on accounts stated between them.' The defendant filed the plea of never was indebted, and also several other special pleas which were withdrawn by him with leave of the court just before the case was submitted to the jury. On the trial, a verdict and judgment were rendered for the plaintiff for $2,090.13 and costs. The defendant has brought this judgment here for review on writ of error.

The only material questions presented by the specific assignments of error which are argued grow out of the refusal by the court to give three instructions requested by the defendant and in the giving of two charges by the court. They are as follows:

'Twenty-second assignment. In this case the court charges you that the contract in evidence under which the plaintiff testified he furnished lumber is a contract under seal and that the pleadings of the plaintiff are not such as to authorize him to recover the price of such lumber in this suit.'

'Twenty-third assignment. The court charges you that you cannot in this suit find for the plaintiff for the price of any lumber furnished by the plaintiff to the defendant under the contract dated March 23, 1910.'

'Twenty-fourth assignment. The court charges you that you cannot by your verdict in this action find anything for the plaintiff for any lumber furnished in January, 1911, by the plaintiff to the defendant under the contract of March 23, 1910; the pleadings here not being such as to authorize any recovery therefor.'

These are the three instructions requested by the defendant and refused by the court

'Twenty-fifth. The court charges you that the plaintiff is entitled to recover in this action for all of the lumber delivered to the defendant at the contract price between the time delivery commenced up until the 1st day of February of this year, and also for such other articles of merchandise as plaintiff may have delivered to the defendant, as well as for whatever amounts the plaintiff may have paid out, such as paying a watchman to watch the lumber and similar items, less such amounts as have been paid according to the testimony. Your verdict should be accordingly.'

'Twenty-sixth assignment of error. The court charges you that the plaintiff is entitled to recover in this action for all lumber delivered to the defendant at the contract price, between the time delivery commenced up until the 1st day of February of this year, less such amounts as have been paid according to the testimony.'

The two last charges were given by the court.

These five assignments are grouped in the brief of plaintiff in error in the following language: 'These several assignments of error, as is apparent from the statement of the case, sought to raise the question whether the contract being under seal, never having been rescinded, and both parties testifying that they were still proceeding under it, a recovery could be had thereon under the common counts, or whether the plaintiff should be driven to an action of...