G. B. HEWETT, PLAINTIFF IN ERROR,
v.
HENRY WESTER, DEFENDANT IN ERROR
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In this replevin action, the Florida Supreme Court reversed a judgment for the plaintiff where the evidence showed the parties had merely entered into a contract for the sale of watermelons at a future price, rather than establishing that the plaintiff had a present right to possession of specific watermelons. The Court held that replevin is an improper remedy for enforcing contractual obligations.
Replevin is not an appropriate remedy for recovering amounts due on account or for enforcing contractual obligations to deliver goods; it is limited to recovering possession of property in dispute to which the plaintiff already has a right of possession.
“the action of replevin is not brought for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the possession of the property in dispute”
Establishes the fundamental limitation on replevin as a remedy—it cannot be used to enforce contractual payment obligations or recover amounts due.
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Join FLexlaw to unlock all legal intelligenceWester (plaintiff) and Hewett (defendant) entered into a contract whereby Wester agreed to purchase all watermelons that Hewett planted and raised fro…
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Per Curiam.
—This is an action of replevin which was instituted by Henry Wester against G. B. Hewitt to recover the possession of “ten acres of watermelons in field and some loaded on a car.” The writ was issued and returned by the sheriff as having been executed by taking into his custody “the within described melons in car and in field.” The defendant filed his forthcoming bond and also a plea of not guilty and the case came on for trial before a jury which resulted in a verdict in favor of the plaintiff to the effect that at the time of the institution of the action he was entitled to the possession of three cars of watermelons of the value of $329.85. Judgment was entered against the defendant and his sureties, which judgment is brought here for review.
The only error assigned is based upon the overruling of the motion for a new trial, which questions the sufficiency of the evidence to support the verdict. We are of the opinion that this error is well assigned. Very succinctly stated, the evidence adduced establishes that the plaintiff and defendant entered into a contract to the effect that the plaintiff was to buy all the watermelons which the defendant might plant and raise from eighteen pounds and up, delivered on the car, at the price of $40.00 a car. No money was paid on the contract. The plaintiff sold the defendant ten pounds of seed for $4.00, which was charged to the defendant on open account. When the melons began to mature, the defendant refused to sell and deliver the same to the plaintiff, whereupon he instituted this action of replevin. It is evident that the plaintiff has mistaken his remedy. As we have several times held, the action of replevin is not brought for the purpose of recovering the amount which might be found to be due from the defendant to the plaintiff on account, but to recover the possession of the property in dispute. Malsby v. Gamble, 61 Fla. 310, 54 South. Rep. 766. Also see Bell v. Niles, 61 Fla. 114, 55 South. Rep. 392, and Covington v. Clemmons, 61 Fla. 151, 55 South. Rep. 81.
Further discussion is unnecessary. The judgment must be reversed.
Taylor, C. J., and Shackleford, Cockrell, Whitfield and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bell v. Niles, 61 Fla. 114 (Fla. 1911)
- Malsby v. Gamble, 61 Fla. 310 (Fla. 1911)
- Wiltcher v. State (Miss. 1910)
- Covington v. Clemmons, 61 Fla. 151 (Fla. 1911)