Florida Trust & Banking Co. v. Consolidated Title Co. , 86 Fla. 317 ( 1923 )

Terrell, J.

Plaintiff below brought an action of replevin in the Circuit Court of DeSoto County- against Florida Trust & Banking Company for the purpose of recovering possession of “the complete abstract business of' the Consolidated Title Company, consisting of abstract books, typewriters, multigraph machine and fixtures, desks, tables, typewriter tables, cabinets, filing cabinets,, chairs, waste baskets, water coolers, electric fans, rugs, pencils, pencil sharpeners, rubber stamps, scissors, fastening machines, screw drivers, maps, index records, plat, books, miscellaneous books, loose leaf indexes, filing dockets, order books, index books, a large lot of abstract supplies consisting of books, carbon- sheets, sheets, letter files and letters, journals, and a full supply of take-off sheets of DeSoto County, and various other sundries in connection with said abstract business, all of the value of $25,-000.00,” and $50,000.00 damages for its detention.

A trial was had and the jury awarded the abstract business as above to the plaintiff, found the value thereof to be $18,000.00, and assessed $1,200.00 damages against tbe defendant for the detention of the said business.

Final judgment was rendered for the plaintiff in accordance with the verdict, and defendant took writ of error.

We think that the motion for new trial should have been granted. -An inspection of the whole record discloses that the business in question had been operated for years at a loss, that certain of the stockholders had frequently advanced funds from their personal account for operating expenses, and that the minority stockholders acquired the stock of the majority stockholders at thirty cents on the dollar, or an equivalent of less than $9,600.00 on the property involved in this litigation. The last named amount being the sum agreed on for a sale of the said abstract business to the defendant.

One witness be.ing an experienced abstractor and who had been an. employee of the plaintiff, testified that the property in litigation had never paid a dividend, yet in his opinion it was worth $25,000.00, while four experienced abstractors familiar with the plant testified that the said propeprty had a value of from $8,500.00 to $10,000.00, and the' officers in June, 1919, had agreed on a sale.of said •property for $9,600.00.

It is a fact that the value as fixed by the jury was about two years subsequent to the agreed sale, but nothing appears in the record which would tend to show an increase in the value during this time, and no other evidence was introduced on the question of value or damages. The value found is not sustained by the probative force of the evidence.

It is the function of the ju'ry to weigh the evidence, determine its probative force, reconcile its contradictions and give such credence as their judgment shall dictate to the testimony of each witness who deposes. This function of the jury when exercised will not be disturbed by the appellate court when it appears that the verdict is in keeping with the justice of the case; but when it fully appears to the court that the verdict of the jury cannot be reconciled with the manifest weight of the evidence and the justice of the cause, this court should not through respect for the rule as above stated withhold its authority to set it aside.

The verdict in this case is grounded on the evidence of facts somewhat complicated and entirely contradictory; it does not appear to reach a just, or substantially just conclusion, contradicts the weight of the testimony and we must therefore conclude that the jury was actuated by some cause which should not have influenced them. Schultz v. Pacific Insurance Co., 14 Fla. 73, text 93, 94.

Other questions presented in this case are not decided.

The judgment of the Circuit Court of DeSoto County is reversed.

Whitfield, P. J., and West, J., Concur. Taylor, C. J., and Ellis and Browne, J. J., Concur in the conclusion.