MEMFORD E. WELBORN, ET UX.,
v.
T. J. KEMP
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In this ejectment action, the Florida Supreme Court reversed a directed verdict for the property owner, holding that the trial judge erred by removing from the jury the factual question of whether an oral contract for sale existed between the parties. The Court emphasized that conflicting evidence and reasonable inferences must be submitted to the jury, not decided by the judge as a matter of law.
The trial judge erred in directing a verdict because the evidence was conflicting and admitted of different reasonable inferences regarding whether an oral contract existed. The question of the contract's existence was a matter of fact for the jury, and a directed verdict should only be granted when there is no evidence whatever that could support a verdict for the defendant.
“The existence of an oral contract is a question of fact for the jury, and a charge directing a verdict for the plaintiff should never be given unless it is clear that there is no evidence whatever adduced that could in law support a verdict for defendant.”
Establishes the fundamental standard for when directed verdicts are permissible in cases involving oral contracts.
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Join FLexlaw to unlock all legal intelligenceT. J. Kemp owned the fee to property in Marion County and brought an ejectment action against Memford Welborn and his wife. Welborn, in possession of …
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T. J. Kemp instituted this action of ejectment for lands situated in Marion County, against Welborn and his wife. Welborn interposed a plea of not guilty, and three equitable pleas, alleging the existence of an oral contract between himself and Kemp for the sale of the property to Welborn. It was stipulated between the parties that Kemp owned the fee, and that Welborn was in possession.
Kemp, at the conclusion of all testimony, moved for directed verdict on the grounds that no tender had been made under the alleged contract, and that no contract had been proved. Verdict was directed, giving Kemp possession of the land. From a denial of a motion for a new trial, Welborn brings writ of error.
The existence of an oral contract is a question of fact for the jury, and a charge directing a verdict for the plaintiff should never be given unless it is clear that there is no evidence whatever adduced that could in law support a verdict for defendant. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted *91to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law. Section 4363 (2696) C. G. L.; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910; Cameron & Barkley Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814.
The evidence here being conflicting, and admitting of different reasonable inferences, the trial judge erred in directing a verdict for plaintiff, and a new trial should be granted.
It is so ordered.
Whitfield, P. J., and Brown and Chapman, J. J., concur.
Thomas, J., concurs in opinion and judgment.
Justices Terrell and Buford not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Milohnich v. First Nat'l Bank OF Miami Springs, 224 So. 2d 759 (Fla. 3d DCA 1969)…howing the existence of the sortof implied contract described by the majority, or a usage of the banking tradeas -described by the majority. In either event, the trier of fact must decide whether such an implied contract exists (see Welborn v. Kemp, 141 Fla. 89, 192 So. 469 [1939]; Wabash Fire and Casualty Co. v. Holloway, Fla.App.1962, 139 So. 2d 145) or whether such a method of dealing is a usage of the banking trade (see § 671.1 — 205[2], Fla.Stat. [1967], F. S.A.) It should be noted at this point that…
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Minerva Goldstein and her husband v. Great Atl. & Pac. TEA Co., 142 So. 2d 115 (Fla. 3d DCA 1962)…er the broken car stop at all, and this may be what a jury would ultimately determine. Under the testimony, however, this conclusion is not the only reasonable one. Therefore, a jury and not the court should make this determination. Welborn v. Kemp, 141 Fla. 89, 192 So. 469. For the same reason, we must reject appellee’s contention that the plaintiff’s contributory negligence appears as a matter of law. Whether the danger of the protruding rod was an obvious one is a conclusion that must be made by weighi…
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Armao v. McKenney, 218 So. 3d 481 (Fla. 4th DCA 2017)…ed that Florida recognizes oral cohabitation agreements between unmarried parties, we next consider whether the evidence was sufficient to show an oral agreement. The existence of an oral contract is an issue for the finder of fact. Welborn v. Kemp, 141 Fla. 89, 192 So. 469, 470 (1939). An appellate court reviews a trial court’s factual findings for competent substantial evidence. Griffin Indus., LLC v. Dixie Southland Corp., 162 So. 3d 1062, 1066 (Fla. 4th DCA 2015); see also Klosters Rederi A/S v. Jamaic…
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- McKinnon v. Johnson, 57 Fla. 120 (Fla. 1909)
- Cameron & Barkley Co. v. Law-Engle Co., 98 Fla. 920 (Fla. 1929)