BEN J. CHASIN AND MOLLIE CHASIN, HIS WIFE, APPELLANTS,
v.
A. J. RICHEY, APPELLEE
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A real estate broker sued for a commission on a property sale, claiming five percent of a $152,500 purchase price. Although the complaint's prayer for damages stated $7,125, the body of the complaint clearly alleged a five percent commission, supporting a verdict of $7,625. The Florida Supreme Court affirmed, holding that the jury verdict exceeded the ad damnum clause due to a mathematical error and that under modern pleading rules, the facts alleged rather than the prayer form determines the relief to be granted.
The court held that the judgment and verdict of $7,625 were proper and should be affirmed. Under modern pleading rules based on the Federal Rules of Civil Procedure, the facts alleged and the issues proven determine the nature of relief granted, not merely the form of the prayer for relief. The ad damnum amount resulted from a simple mathematical error, and the defendant had proper notice from the complaint's body of the true claim amount.
“After a study of the complaint, as a whole, it is apparent that the amount prayed for in the ad damnum clause resulted from a simple mathematical error, since the plaintiff clearly alleged in the body of his complaint that the commission to which he was entitled was five percent of the stated selling price.”
Establishes that the discrepancy between the prayer and the body was a mathematical error, supporting enforcement of the actual claim amount.
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HOBSON, Justice.
This is an appeal by defendants from final judgment of the circuit court'entered consequent upon a verdict for the plaintiff in the amount of $7,625. and costs,
The plaintiff is a real estate broker, 'who sued for a commission which he claimed as a result of the sale of certain property. In his complaint, he alleged that this commission was-fiv-e percent of the purchase price of the property, which was alleged to have been $152,500. Five percent of the alleged selling price would have Ibeen $7,625. which was the amount of the verdict. Tn the complaint, however; plaintiff demanded damages only in the amount of $7,125. The verdict in the larger amount is fully supported by the evidence, and although appellants contend that the jury misinterpreted the evidence, we cannot agree. The only contention of appellants which we consider it necessary to discuss is their second, namely, that the verdict and judgment were in error because they were entered in an amount in excess of that which was prayed for in the complaint.
After a study of the complaint, as a whole, it is apparent that the amount prayed for in the ad damnum clause resulted from a simple mathematical error, since the plaintiff clearly alleged in the body of his complaint that the commission to which he was entitled was five percent of the stated selling price. ‘ '
Appellants rely upon Fain v. Cartwright, 132 Fla. 855, 182 So. 302, in which we held that a plaintiff suing for damages sustained in an automobile collision could not‘recover more than the amount claimed in the declaration. In that case the plaintiff had claimed, as an item of special damage, $35 per week for loss of earnings. At the trial he testified, however, that he made approximately $75 a week. There was no suggestion in the pleadings that an amount greater than $35 a week would be claimed, and defendant was. understandably surprised at the trial by testimony of a much larger claim. That, is not the case here, where the: theory of plaintiff’s case, as indicated in his complaint, shows that, he is suing-for the larger amount.
Moreover, the Cartwright case was decided under the old rules of procedure. Under the present rules, which are modeled upon the Federal Rules of Civil Procedure, 28 U.S.C.A. every1 complaint is considered'to pray for general relief 30 F.S.A.Rule 1.8, Florida Rules of Civil Procedure, and in the ordinary case it is the facts alleged, the issues and proof,-'and not the form .of the prayer.for relief, which determine the nature of the relief to be granted; The federal courts have held that the relief which may be granted the plaintiff is not limited by his prayer. Fanchon & Marco, Inc., v. Paramount Pictures, Inc., 2 Cir., 202 F. 2d 731, 36 A.L.R.2d 1336; Ring v. Spina, 2 Cir., 148 F. 2d 647, 160 A.L.R.
371. We do not hold that this principle will be applicable in every case, since in some cases, as in the Cartwright case, supra, it may result in surprise at the trial. In the case before.us, however, defendant was placed upon proper notice by the allegations in the body of the complaint, and cannot now complain-of a simple mathematical error which could have been corrected at the pleading stage had it been brought to the attention of the trial court at that time.
Affirmed.
TERRELL, Acting C. J., THORNAL, J., and LOPEZ, Associate Justice, concur.
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Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563 (Fla. 1971)….App.1962) 137 So. 2d 252; Plowden & Roberts, Inc. v. Conway (Fla.App.1966) 192 So. 2d 528. Likewise, under our rules of procedure, it is not necessary for the plaintiff to state the theory of his case in his pleading. In Chasin v. Richey (Fla.1957) 91 So. 2d 811, this court stated as follows: “Under the present rules, which are modeled upon the Federal Rules of Civil [*566] Procedure, 28 U.S.C.A. every complaint is considered to pray for general relief 30 F.S.A. Rule 1.8 [Amended in 1966 and now appearing…
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Cherney v. Moody, 413 So. 2d 866 (Fla. 1st DCA 1982)…as here, and it is not necessary to state the theory of the case in the pleading: “it is the facts alleged, the issues and proof, and not the form of the prayer for relief, which determines the nature of the relief to be granted.” Chasin v. Richey, 91 So. 2d 811, 812 (Fla.1957). It is also well settled that a counterclaim for recoupment may be asserted although barred by the statute of limitations as an independent cause of action. See Payne v. Nicholson, 100 Fla. 1459, 131 So. 324, 326 (Fla.1930). Here, ap…
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Circle Fin. Co. v. Peacock, 399 So. 2d 81 (Fla. 1st DCA 1981)…pray for general relief. Fla.R.Civ.P. I.110(b). The court thus is required to look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted. Chasin v. Richey, 91 So. 2d 811 (Fla.1957); Phelps v. Higgins, 120 So. 2d 633 (Fla.2d DCA 1960). Restated, the character of an equitable pleading is determined, not by its title, but by its contents, and by the actual issues in dispute. Moorhead v. Moorhead, 159 Fla. 470, 31 So. 2…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ring v. Spina, 148 F.2d 647 (2d Cir. 1945)
- Fain v. Cartwright, 132 Fla. 855 (Fla. 1938)
- Fanchon & Marco, Inc. v. Paramount Pictures, Inc., 202 F.2d 731 (2d Cir. 1953)