STATE OF FLORIDA EX REL. MERCANTILE INVESTMENT & HOLDING CO., A FLORIDA CORPORATION, ALSO KNOWN AS MERCANTILE INVESTMENT AND HOLDING COMPANY, A FLORIDA CORPORATION,
v.
HONORABLE GEORGE W. TEDDER, JUDGE OF THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR BROWARD COUNTY, AND C. R. GILLILAND
Heretofore this Court issued its rule nisi in prohibition. Returns have now been filed and we will determine the sufficiency of same.
This case was before us to review a judgment for plaintiff based upon a declaration in special and general assumpsit. Mercantile Inv. & Holding Co. v. Gilliland, 3 So. 2nd. 149. The gist of our holding was that special assumpsit would not lie and the evidence was insufficient on general assumpsit. Upon authority of Pritchett, et al., v. Brevard Naval Stores Co., et al., 134 Fla. 649, 185 So. 134, and Webb. Fur. Co. Inc. v. Everett, 105 Fla. 292, 141 So. 115, we now hold the returns sufficient and discharge the rule nisi.
So ordered.
WHITFIELD, TERRELL and BUFORD, JJ„ concur.
BROWN, C. J., CHAPMAN, and THOMAS, JJ., dissent.
on rehearing
We denied prohibition here on March 24, 1942, and now we consider same on rehearing granted.
When this Court reverses a judgment it has the power to direct the entry of such judgment as may be proper in law. Section 4640, C.G.L. 1927. Garzo v. Brophy Const. Co., 66 Fla. 607, 64 So. 234.
*177When we reversed the judgment in this case, (147 Fla. 610, 3 So. 2nd 149) we were of the opinion that the planitiff had introduced evidence of services rendered hut had not produced evidence of the reasonable value of such service. Furthermore it appeared that the defendant’s plea of payment had been proven. Upon further consideration we think these facts distinguish this case from Pritchett, et al., v. Brevard Naval Stores Co., et al., 134 Fla. 649, 185 So. 134, and Webb Fur. Co. Inc., v. Everett, 105 Fla. 292, 141 So. 115. In that state of the record the defendant was entitled to judgment. We might have directed the entry of a judgment for the defendant. We directed further proceedings not inconsistent with the opinion which amounted to the same. Oral argument was had on this original proceeding and no question was raised as to the remedy here pursued.
It is therefore ordered that our judgment entered on March 24, 1942, be vacated and writ of prohibition absolute is now granted and the respondent is prohibited from further proceeding herein except to enter a judgment for defendant.
So ordered.
BROWN, C. J„ WHITFIELD, TERRELL, BUFORD, CHAPMAN and THOMAS, JJ., concur.
on rehearing
ADAMS, J.:
We denied prohibition here on March 24, 1942, and now we consider same on rehearing granted.
When this Court reverses a judgment it has the power to direct the entry of such judgment as may be proper in law. Section 4640, C.G.L. 1927. Garzo v. Brophy Const. Co., 66 Fla. 607, 64 So. 234. When we reversed the judgment in this case, (147 Fla. 610, 3 So. 2nd 149) we were of the opinion that the planitiff had introduced evidence of services rendered hut had not produced evidence of the reasonable value of such service. Furthermore it appeared that the defendant’s plea of payment had been proven. Upon further consideration we think these facts distinguish this case from Pritchett, et al., v. Brevard Naval Stores Co., et al., 134 Fla. 649, 185 So. 134, and Webb Fur. Co. Inc., v. Everett, 105 Fla. 292, 141 So. 115. In that state of the record the defendant was entitled to judgment. We might have directed the entry of a judgment for the defendant. We directed further proceedings not inconsistent with the opinion which amounted to the same. Oral argument was had on this original proceeding and no question was raised as to the remedy here pursued.
It is therefore ordered that our judgment entered on March 24, 1942, be vacated and writ of prohibition absolute is now granted and the respondent is prohibited from further proceeding herein except to enter a judgment for defendant.
So ordered.
BROWN, C. J„ WHITFIELD, TERRELL, BUFORD, CHAPMAN and THOMAS, JJ., concur.
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Citator
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Baring Indus., Inc. v. Rayglo, Inc., 303 So. 2d 625 (Fla. 1974)…evidence regarding loss of investment, conflicted with controlling decisions holding that only damages awarded on the basis of competent evidence gleaned from the evidence is proper. Compare State ex rel. Mercantile Investment Co. v. Tedder (1942), 150 Fla. 175, 8 So. 2d 470, and Magic City Grocery, Inc. v. Knowles, supra. We conclude that the decision of the District Court must be quashed. On remand the trial court should permit opportunity to Rayglo to demonstrate if it can whether amendment to the com…
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Cent. & S. Fla. Flood Control Dist. v. Dupuis, 109 So. 2d 596 (Fla. 3d DCA 1959)…urt below should have given.” See Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211, 212; Story v. First [*599] Nat. Bank & Trust Co. in Orlando, 103 Fla. 399, 139 So. 179, 185-186; State ex rel. Mercantile Investment & Holding Co. v. Tedder, 150 Fla. 175, 8 So. 2d 470; Cason v. Baskin, 159 Fla. 31, 30 So. 2d 635, 640; Kuharske v. Lake County Citrus Sales, Fla., 61 So. 2d 495, 497; 6 Moore, Federal Practice, § 56.12 (2d ed. 1953). Cf. Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792. For the…
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Pinellas Cnty. Water & Navigation Control Auth. v. Zabel, 179 So. 2d 370 (Fla. 2d DCA 1965)…ithout elaborating, we conclude that the circuit court’s order complies with our mandate and is consistent with the opinion and judgment of the supreme court. In this connection, see State ex rel. Mercantile Investment & Holding Co. v. Tedder, 1942, 150 Fla. 175, 8 So. 2d 470. Affirmed. SHANNON, Acting C. J., and LILES and KANNER, (Ret.), JJ., concur.…
Authorities Cited
- Webb Furniture Co., Inc. v. Everett, 105 Fla. 292 (Fla. 1932)
- Pritchett v. Brevard Naval Stores Co., 134 Fla. 649 (Fla. 1938)
- Garzo v. J. H. Brophy Constr. Co., 66 Fla. 607 (Fla. 1914)
- Mercantile Inv. & Holding Co. v. Gilliland, 147 Fla. 610 (Fla. 1941)