WEST COAST FRUIT COMPANY, PLAINTIFF IN ERROR,
v.
W. L. HACKNEY, DEFENDANT IN ERROR
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West Coast Fruit Company sued W. L. Hackney for breach of a contract to sell a citrus crop, but the trial court refused to allow plaintiff to take a non-suit after discovering a variance between the pleading and proof regarding whether the contract covered all fruit or only merchantable fruit. The Florida Supreme Court reversed, holding that a plaintiff has the statutory right to take a non-suit before the jury retires, even when a plea of set-off is pending.
The trial court erred in refusing plaintiff's motion to take a non-suit. Under Florida law, a plaintiff has the right to take a non-suit before the jury retires, and this right is not eliminated by the presence of a plea of set-off.
“The rule is well settled in this jurisdiction that the presence of a plea of set-off does not deprive the plaintiff of his right to take a non-suit before the jury retires.”
Establishes the core holding that a plaintiff's right to take a non-suit is not eliminated by a defendant's plea of set-off.
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Join FLexlaw to unlock all legal intelligenceWest Coast Fruit Company brought suit against W. L. Hackney for damages for breach of a citrus sales contract. The declaration alleged a contract to s…
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Brown, J.
Plaintiff in error brought suit against defendant in error for damages for the alleged breach of a contract of sale of a crop of oranges and grapefruit. After demurrer to the declaration was overruled, the defendant interposed several pleas, among them a plea of the general issue and one of set-off. On the trial, after plaintiff had offered his evidence, defendant moved for an instructed verdict in favor of the defendant on the ground of variance between the pleading and proof, in that the declaration alleged a contract to sell the entire crop of oranges and grapefruit, whereas the proof showed a contract to sell only the “merchantable” fruit. The court intimated that it would grant the motion. Plaintiff then asked leave of the court to amend its declaration by interlining the word “merchantable” at the proper place, so as to make the pleading and evidence correspond. This motion was denied. Thereupon plaintiff moved the court to permit plaintiff to take a non-suit. This motion was also denied, and the jury instructed to find a verdict for the defendant. This was done, and judgment rendered thereon, which is now before us on this writ of error. No testimony was offered or sought to be offered by the defendant under his plea of set-off, and the instructions, verdict and judgment made no reference thereto.
The controlling question presented is whether the court erred in refusing plaintiff’s motion to be allowed to take a non-suit.
At common law a non-suit could be taken at any time before verdict. 6 Encyc. Pld. & Prac. 836. This right has been limited by our statute, which provides that “no plaintiff shall take a non-suit on trial unless he do so before the jury retire from the bar. ’ ’ Section 4357 Comp. Gen. Laws.
The rule is well settled in this jurisdiction that the presence of a plea of set-off does not deprive the plaintiff of his right to táke a non-suit before the jury retires. Buffinton v. Quackenboss, 5 Fla. 196; Clarke v. Wall, 5 Fla. 476; National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. R. 525; Haile v. Mason Hotel, 71 Fla. 469, 71 So. R. 540. The reasons for this rule are well started in the case first above cited.
The error of the court in declining to allow the plaintiff to exercise this right before the jury had retired requires the reversal of the case, and renders it unnecessary and perhaps inappropriate to discuss the remaining assignments of error. Reversed and remanded.
Terrell, C. J., and Ellis, J., concur. Whitfield, P. J., and Strum and Buford, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hartquist v. Tamiami Trail Tours, Inc., 139 Fla. 328 (Fla. 1939)…to take a nonsuit, dismissal or discontinuance within the time provided in the statute. National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525; Haile v. Mason Hotel & Inv. Co., 71 Fla. 469, 71 So. 540; West Coast Fruit Co. v. Hackney, 98 Fla. 382, 123 So. 758; Pitt v. Abrams, 103 Fla. 1022, 139 So. 152. [*345] A nonsuit is of two kinds — voluntary and involuntary. It becomes involuntary when it is prompted by an adverse ruling of the court which is preclusive of a recovery by the plaintiff, 18 C. J., Dis…
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Pitt v. Abrams, 103 Fla. 1022 (Fla. 1931)…herefore, the right to take a non-suit is not barred by the trial court directing the jury to return a verdict for the defendant. See Hale vs. Mason Hotel & Investment Company, 71 Fla. 469, 71 Sou. 540; West Coast Fruit Co. vs. Hackney, 98 Fla. 382, 123 Sou. 758, and cases there cited. It is, therefore, held that the trial court committed error in denying the plaintiff the right to take non-suit, for which reason the judgment should be reversed. It is so ordered. Eeversed. Ellis and Brown, J.J., concur.…
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Cook v. Lichtblau, 176 So. 2d 523 (Fla. 2d DCA 1965)…See also Boaz v. Mutual Life Ins. Co. of New York, D.C.E.D. Mo.1943, 53 F.Supp. 97 (aff’d, 8 Cir. 1944, 146 F. 2d 321). . See, e. g., Owca v. Zemzicki, Fla.App.1962, 137 So. 2d 876. . See e. g., West Coast Fruit Co. v. Hackney, 1929, 98 Fla. 382, 123 So. 758. . Note 23, supra. . Supra at note 23. The Safeway Stores case, supra, relied on by the trial judge, is inapplicable for additional reasons. The plaintiff in that case made no motion for nonsuit or for voluntary dismissal without prejudice. Furthe…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haile v. Mason Hotel & Inv. Co., 71 Fla. 469 (Fla. 1916)
- The Nat'l Broadway Bank v. Lesley, 31 Fla. 56 (Fla. 1893)
- Buffington v. Quackenboss, 5 Fla. 196 (Fla. 1853)
- Clarke v. Wall, 5 Fla. 476 (Fla. 1854)