Opinion
November 4, 1952. Rehearing Denied December 15, 1952.
Appeal from the Circuit Court for Lake County, F.R. Hocker, J.
Sidney M. Lippmann, Orlando, for appellants.
J.W. W.B. Hunter, Tavares, for appellee.
This is the second appearance of the instant suit before this court. On the first appeal, Fla., 44 So.2d 641, we determined that the trial judge had committed error in the first trial in directing the jury that in no event could it bring in a verdict in favor of the plaintiffs below in a sum greater than $4,189.50. By virtue of such charge the jury in that case was precluded from determining the question of the amount of actual damages suffered by the appellants and all other questions necessarily connected therewith. The jury was only permitted to render a verdict in an amount admittedly due appellants in any and all events because the sum of $4,189.50 represented the contract price for the boxes of grapefruit which were concededly picked by the appellee before it abandoned the contract. The only dispute arose by virtue of appellee's contention that it should be permitted to deduct the $4,000 deposit from the sum of $4,189.50 admittedly due appellants. After entry of the judgment appellee tendered payment which was accepted by the appellants. Appellee then contended that this court should dismiss the appeal which appellants had taken because of the almost universal rule to the effect that a party who accepts the benefits of a judgment in his favor may not thereafter prosecute an appeal from such judgment. With this contention we did not agree. We recognized and invoked the well established exception to the rule which is that a party is not estopped from taking or prosecuting an appeal under such circumstances if the judgment be no greater than the amount admittedly due and owing to him.
It was the view of the trial judge that since the contract for the sale and purchase of fruit upon which the suit was predicated provided that Lake County Citrus Sales, Inc., should make a deposit, which it did make, to guarantee its performance of the contract, such sum was in fact deposited with appellants (plaintiffs below) not as a guarantee fund but as and for liquidated damages. On appeal we disagreed with the learned Circuit Judge and reversed the case for a new trial. We directed the lower court that upon the new trial the jury be charged that it should find a verdict in the amount of actual damages as said jury might determine such actual damages to be from the evidence (including, of course, the sum due for grapefruit admittedly picked by appellee) and further that the jury should be charged that it should deduct from the total amount which it found as actual damages the sum of $8,189.50 which amount was made up of the judgment originally entered upon the first trial of this case in the sum of $4,189.50 and the retained deposit in the amount of $4,000.
After the going down of our mandate a new trial was ordered by the Circuit Judge. The jury upon this trial rendered a verdict in favor of the appellants in the sum of $463.33 and in addition thereto awarded the appellants interest on said sum at the rate of 6% per annum from the 8th day of March, 1947.
It is contended by counsel for appellants that the trial judge in the second trial erred in permitting evidence to go to the jury upon questions other than the question of the amount of actual damages. The only question which could be said to have been submitted to the jury other than that of actual damages or matters properly connected therewith and necessary to be considered in determining such damages, was that of liability. If counsel be correct in his position, that the question of liability was again submitted to the jury on the retrial of this case contra to the mandate of this Court which directed a retrial solely upon the question of actual damages, we do not find that he can complain because the jury determined that question in appellants' favor.
It is true that the jury did not find actual damages in the amount contended for by appellants. Nevertheless, it did find the appellee liable and the extent of liability was a question for the jury because actual damages could be determined only after first determining whether the appellants or the appellee should be responsible for the damage occasioned the fruit crop by the freeze of February 6, 1947. This question could be resolved only upon and after a determination of the question whether appellee should have picked all of the fruit before the freeze occurred, that is to say whether the period of time that expired from the date upon which the fruit would pass the maturity test and the date of the freeze was a reasonable time within which appellee should have picked all of the marketable fruit.
It is evident that there was marketable fruit on the trees after the date upon which appellee made its last "picking" because appellants established by uncontradicted testimony (if indeed the fact was not admitted) that they had sold to Purpura Bros. fruit which actually was shipped in interstate commerce. The fruit which was sold to Purpura Bros. was fruit which the jury evidently determined, and we think correctly so, should have been picked by appellee before it abandoned the contract. Consequently, the difference between the contract price of $2.10 per box and the 50 cents per box which appellants received from Purpura Bros. was a proper element of actual damages. The jury obviously determined that appellee should not have been required to pick all of the fruit between December 15, 1946, the date upon which the fruit was presumed without the necessity of an examination to be of such quality as to pass the maturity test, and February 6, 1947, the date upon which the freeze occurred, because it decided that that was not a reasonable period of time to be allowed appellee within which to pick all of the fruit. Consequently, appellee should not be responsible for the loss sustained by virtue of frost damage. Having made such determination, it is clear that the jury properly refused to allow damages for fruit which was damaged by the freeze and which did not measure up to the contract requirements.
The question as to what was a reasonable period of time that should be allowed appellee within which to pick all of the fruit was for the jury. We do not find that appellants have made harmful or reversible error clearly apparent, except upon the question whether the verdict of the jury was inadequate — that is to say whether the verdict unquestionably should have been for a larger sum because the loss on the resale to Purpura Bros. alone, which was established by competent, substantial evidence which was not controverted by testimony of like character, was greater than the amount of actual damages found by the jury. It is obvious that the jury deducted the $4,000 deposit, leaving, as the jury calculated, a balance due of $463.33. Simple arithmetic dictates a different conclusion because the amount of actual damages proven as a result of the resale to Purpura Bros. was $4,651.20. Hence the verdict should have been in the sum of $651.20. It matters not whether the jury included the sum of $4,189.50, which was the amount of the judgment entered on the first trial for fruit actually picked but not paid for by appellee, and then subtracted $8,195.50 from the total amount of determined damages or merely ignored the figure $4,189.50 altogether.
Appellants' itemized claim of actual damages in addition to the damages resulting from the sale to Purpura Bros. includes approximately 2000 boxes of "drops" and 1035 boxes of fruit sold to M. Siplin at 25¢ per box. The jury apparently decided that the "drops" and the fruit sold to Siplin was fruit which had been damaged by the freeze did not measure up to the requirements of the contract and that the loss upon this fruit was not properly chargeable to appellee.
We are now faced with the problem of deciding whether we should reverse this case for a new trial because the verdict and judgment clearly should have been in the amount $651.20 rather than $463.33, or reverse and direct the entry of a judgment in the sum of $651.20, or "give such judgment * * * as the court below should have given" as this Court is authorized to do by Section 59.34, F.S.A.
There is no reasonable or logical basis for a third trial of this suit. Every justiciable controversy has been settled by at least one of the two juries which have previously tried the issues of fact in this case. The only apparent error is the result of the failure of the jury to render a verdict in a mathematically correct amount and of the trial judge's oversight in neglecting to direct the jury to modify its verdict in such manner as to justify the entry of a judgment proper in law.
It appears to be the contention of counsel for appellants that Section 59.34, F.S.A., makes it the duty of this Court to "give such judgment * * * as the court below should have given". It is clear that the above quoted alternative provision of Section 59.34, supra, authorizes and empowers us to enter such judgment as may be proper in law. However, upon a consideration of Section 59.34, supra, in its entirety we do not construe it as placing the mandatory obligation upon us to do so. Consequently, we have decided to follow our customary procedure and do hereby reverse this cause with the direction to the Circuit Court to enter a judgment in the amount of $651.20, together with interest thereon at the rate of 6% per annum from the 8th day of March, 1947.
Reversed with directions.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.