E. O. MARCOUX, APPELLANT,
v.
HARRY LOUIS DAVIS, APPELLEE
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Appellant Marcoux, a co-owner of a boat mold, appeals a judgment awarding the appellee Davis compensatory damages for injury to the mold while in Marcoux's possession and unjust enrichment damages. The appellate court reversed, holding that Davis accepted the mold in its then-existing condition and that a cotenant is generally not liable for negligent damages to jointly owned property.
The court reversed the judgment, holding that: (1) the appellee accepted the chattel in its then condition through his representative's receipt, which constitutes acceptance under sales law and bars recovery for pre-delivery damage; (2) a cotenant is generally not liable for negligent damages to jointly owned chattels; and (3) there was no basis for unjust enrichment damages.
[1] A buyer's acceptance of a chattel in its then condition, evidenced by a receipt stating it is in acceptable condition, precludes recovery for damages occurring prior to a…
[2] A cotenant is generally not liable to other cotenants for negligent damage to jointly owned property.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the appellee, through his representative, accepted the chattel in its then condition”
Establishes the basis for reversing compensatory damages—acceptance of goods as-is bars liability for pre-delivery defects
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Join FLexlaw to unlock all legal intelligenceMarcoux and Davis were co-owners of a boat mold. While in Marcoux's control and possession, the mold was accidentally damaged. Marcoux delivered the m…
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Appellant, defendant in the trial court, appeals an adverse money judgment which required him to pay damages for alleged injury to a boat mold and to respond in damages to the appellee for an alleged unjust enrichment.
*486At a time material hereto, the boat mold was in the control and possession of the appellant who, at that time, was a co-owner in the chattel. During this period it was accidently damaged. The mold was thereafter delivered to the appellee’s representative who receipted for same as follows :
“Everything on this list has been picked up by me and is in acceptable condition 4/3-67”.
The mold was then used by the appellee, after which he brought the instant action which resulted in damages being awarded both for a compensatory loss and unjust enrichment. The compensatory damages were awarded for the alleged injury occasioned to the chattel while it was in the possession of the appellant, prior to delivery to the appellee and prior to the execution of the bill of sale.
We find that the trial court erred in awarding these damages because (1) the appellee, through his representative, accepted the chattel in its then condition [§ 672.2-608, Fla.Stat., F.S.A.; 28 Fla.Jur., Sales, §§ 103, 117; 46 Am.Jur., Sales, §§ 215, 252], and (2) a cotenant generally is not liable for negligent damages done to the chattel jointly owned. Hyer’s Exrs. v. Caro’s Ex’x, 1878, 17 Fla. 332; 8 Fla.Jur., Cotenancy, § 10. We find no basis in the pleadings or in the record to warrant the recovery of damages against the appellant for unjust enrichment and the final judgment, in this regard, be and the same is hereby reversed.
The appellant’s point on the dismissal of his counterclaim in the trial court, for alleged abuse of process and malicious prosecution, is found to be without merit. Warriner v. Burdines, Inc., Fla.1957, 93 So.2d 108; Gallucci v. Milavic, Fla.1958, 100 So.2d 375, 68 A.L.R.2d 1164; Cline v. Flagler Sales Corp., Fla.App.1968, 207 So.2d 709; 1 Am.Jur.2d, Abuse of Process, § 4.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby reversed, with directions to dismiss the complaint, the counterclaim, and the cause in the trial court.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blue v. Weinstein, 381 So. 2d 308 (Fla. 3d DCA 1980)…ng without prejudice the defendants’ abuse of process counterclaim herein. Bieley v. duPont, Glore, Forgan, Inc., 316 So. 2d 66 (Fla. 3d DCA 1975); American Salvage & Jobbing Co., Inc. v. Salomon, 295 So. 2d 710 (Fla. 3d DCA 1974); Marcoux v. Davis, 230 So. 2d 485 (Fla. 3d DCA 1970). This court has also held, in conflict with the above line of cases, that termination of the action in favor of the person against which process is served is not an essential element of the tort of abuse of process. In Cline v. F…
Authorities Cited
- Al Gallucci v. Milavic, 100 So. 2d 375 (Fla. 1958)
- Cora Lee Cline v. Flagler Sales Corp. & O. H. Schwartz, 207 So. 2d 709 (Fla. 3d DCA 1968)
- Warriner v. Burdines, Inc., 93 So. 2d 108 (Fla. 1957)
- Hyer's Executors v. Caro's Executrix, 17 Fla. 332 (Fla. 1879)