STEPHENS LUMBER COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
WILLIAM M. CATES, DEFENDANT IN ERROR
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Stephens Lumber Company was sued by William M. Cates for payment of a balance owed for lumber sold and delivered. The trial court entered judgment for Cates in the amount of $212.68, and Stephens appealed on various evidentiary and instructional grounds. The Florida Supreme Court affirmed, holding that a buyer cannot retain goods and refuse payment by asserting breach of contract.
The court affirmed the judgment, finding that any error in admitting Cates' testimony was cured by the bookkeeper's implied admission of the account's correctness and receipt of the lumber. The court also held that the trial court properly refused the directed verdict instruction, as a buyer cannot retain goods and refuse payment by asserting breach of contract as a defense.
“When there is a special contract of sale, and the contract has been breached by the seller to the injury and damage of the purchaser, he may set up the contract and its breach and the damages sustained resulting as a proximate consequence of such breach by way of set off to the claim for the value of the goods, but a party may not purchase and retain the goods of another, and when sued for their value set up a breach of contract in the sale and purchase to defeat payment.”
States the governing rule that a buyer cannot use breach of contract as a complete defense to payment for goods actually received and retained.
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Join FLexlaw to unlock all legal intelligenceCates sold five carloads of lumber to Stephens Lumber Company. Cates testified he sold and delivered the lumber, referencing his ledger account create…
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Parkhill, J.
— The defendant in error sued the plaintiff in error in the Circuit Court for Leon County for a balance claimed to be due on account of the purchase price of certain lumber sold by Cates to the said company. The declaration contained the common counts. The defendant filed a plea of never was indebted as alleged. Other pleas of privilege have no bearing upon the assignments of error. The trial resulted in a verdict and judgment for plaintiff for $212.68, and the defendant sued out writ of error. The plaintiff testified in his own behalf that he sold and delivered five carloads of lumber to the defendant, and stated the car number and value of the lumber shipped in each car, the same as set forth in the bill of particulars. He did not measure or count the pieces, he testified as to the quantity and value of the lumber shipped after refreshing his memory from a leaf out of his ledger, the account was made up and written by him in his own handwriting at the time of the transaction from invoices made from written reports of his inspector, Mr. Cheek. This testimony was objected to, as well as the preliminary question to which it was an answer, and afterwards a motion was made to strike it out, but the court overruled the objection to the motion, an exception was noted, and the rulings are assigned as errors. Even if the court erred thereby, the error was cured by the subsequent testimony of the only witness for the defendant, its bookkeeper, J. M. Taylor, who did not deny the correctness of the account as testified to by the plaintiff, nor the receipt of the lumber by the defendant, but testified the account had been'paid in full. This was an implied admission of the correctness of the account.-
The second and third assignments have been disposed of by what we-have already said. The fourth and fifth assignments are expressly abandoned and will not be considered.
Upon the conclusion of the testimony, the defendant moved the court to charge the jury to render a verdict for it because “the suit is based upon common counts and it appears by all .the evidence that the transactions in the suit arose out of special written contracts between the parties which have not been performed by the plaintiff.” The court did not err in refusing to so instruct the jury.
When there is a special contract of sale, and the contract has been breached by the seller to the injury and damage of the purchaser, he may set up the contract and its breach and the damages sustained resulting as a proximate consequence of such breach by way of set off to the claim for the value of the goods, but a party may not purchase and retain the goods of another, and when sued for their value set up a breach of contract in the sale and purchase to defeat payment. Dalton v. Bunn, 137 Ala. 175, 34 South. Rep. 841.
The evidence is sufficient to support the verdict, and the judgment is affirmed.
All concur, except 'Shackleford, J., absent.
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Hazen v. Cobb, 96 Fla. 151 (Fla. 1928)…f course there are no common counts for special assumpsit, and, as was said in the introduction, there are no common counts except those in general assumpsit. ’ ’ See also Bucker v. McKinnon, 37 Fla. 391, 20 So. R. 540; Stephens Lumber Co. v. Cates, 62 Fla. 382, 56 So. R. 298; Yulee v. Canova, 11 Fla. 9. It is a well settled rule that when an express simple contract is open and unexecuted, and plaintiff proceeds for a breach of it, he must declare specially. General [*165] assumpsit will not lie. The law…1 / 2
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Ala. Hotel Co. v. The J. L. Mott Iron Works, 86 Fla. 608 (Fla. 1923)…owed Raehn the sum of $2,378.54, and had after being served with the writ of garnishment herein paid out on credit of Raehn $3,551.68. West Florida Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 South. Rep. 209; Stephens Lumber Co. v. Cates, 62 Fla. 382, 56 South. Rep. 298; Whittington v. Stanton, 63 Fla. 311, 58 South. Rep. 489; Teeter v. Williams, 3 B. Mon. (Ky.), 562; Phoenix Ins. Co. of Brooklyn v. Willis, 70 Tex. 12, 6 S. W. Rep. 825. The sixth and seventh assignments of error challenge [*616…
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Cox v. Grose, 97 Fla. 848 (Fla. 1929)…ecutory contract which remains of binding force and effect. General assumpsit will lie, however, where an express contract has been so far performed that nothing remains to be done but to pay the money due thereunder. See Stephens Lbr. Co. v. Cates, 62 Fla. 382, 56 So. R. 298; Hazen v. Cobb, 117 So. R. 853; Whittington [*853] v. Stanton, 63 Fla. 311, 58 So. R. 489, 41 C. J. 52, 2 R. C. L. 761 (21), 788 (41). Likewise, a count for money had and received will lie for the recovery of money paid on an unexecu…
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