E. H. TOMLINSON, PLAINTIFF IN ERROR,
v.
PENINSULAR NAVAL STORES COMPANY, A CORPORATION, AND OTHERS, DEFENDANTS IN ERROR
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The Florida Supreme Court affirmed a judgment for the defendant in a real estate commission case, finding no evidence to support a joint liability claim against all defendants.
No, there was no evidence presented to establish liability against the individual defendants, which is necessary for a joint liability claim.
“There is no evidence as against Stuckey and Henderson, tending to show liability as to them and as the action proceeds upon a joint liability there could be no recovery in it.”
Establishes the lack of evidence against the individual defendants, which is critical to the joint liability claim.
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Join FLexlaw to unlock all legal intelligenceA real estate agent sued a company and two individuals for commissions, alleging joint liability. The plaintiff took a nonsuit with a bill of exceptio…
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Cockrell, J.
This is an action for commissions by a real estate agent against the Naval Stores Company and A. P. Stuckey and D. R. Henderson jointly, the declaration consisting of a special count and the common count for work and labor done and performed, the plaintiff taking a nonsuit with a bill of exceptions.
There is no evidence as against Stuckey and Henderson, tending to show liability as to them and as the action proceeds upon a joint liability there could be no recovery in it. We need not therefore concern ourselves as to whether a case of some kind might be made out, if the proper action had been brought against the Naval Stores Company alone. Somers v. Florida Pebble Phosphate Co., 50 Fla., 275, 39 South. Rep., 61, and cases cited.
Much stress is laid upon alleged inconsistencies between the testimony of a witness for. the defendants and that given by him on the trial of another case. This is wholly immaterial; prior inconsistent statements may affect credibility, but they are not evidence to prove a fact, not otherwise shown.
Judgment affirmed.
Whitfield, C. J., and Shackleford, J., concur;
Taylor, Hocker and Parkhill, J. J., concur in the opinion.
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State v. Delgado-Santos, 497 So. 2d 1199 (Fla. 1986)…ssion, as substantive evidence at trial, of a trial witness’s prior inconsistent statement made during police interrogation. Prior to the evidence code’s adoption in 1978, such evidence was inadmissible. See Tomlinson v. Peninsular Naval Stores Co., 61 Fla. 453, 55 So. 548 (1911). The evidence code, under section 90.801(2)(a), now permits such prior inconsistent statements that are “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” In the ins…
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Wallace v. Rashkow, 270 So. 2d 743 (Fla. 3d DCA 1972)…State of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Jett v. Commonwealth, Ky., 436 S.W. 2d 788. It appears that Florida courts have not ruled on the subject since 1911. In the case of Tomlinson v. Peninsular Naval Stores Co., 61 Fla. 453, 55 So. 548, the Supreme Court made the following statement: “Prior inconsistent statements may affect credibility, but they are not evidence to prove a fact not otherwise shown.” The Tomlinson case involved an action for commissions by a real est…
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Merchs. & Mechanics Bank v. Sample, 98 Fla. 759 (Fla. 1929)…alleged to be upon a joint contract proof of a several contract will constitute a fatal variance as there is no statute in this State changing the rule. See Rentz v. Live Oak Bank, 61 Fla. 403, 55 So R. 856; Tomlinson v. Peninsular Naval Stores Co., 61 Fla. 453, 55 So. R. 548; Mechanics and Metals Nat. Bank of City of New York v. Angel, 79 Fla. 761, 85 So. R. 675; Graham v. Sewell, 80 Fla. 720, 86 So. R. 639; 11 Stand. Ency. Proc. 1049.” In Freeman on Judgments, 5th Ed., page 189, it is said: ‘ ‘ If plai…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Somers v. The Fla. Pebble Phosphate Co., 50 Fla. 275 (Fla. 1905)