Opinion
February 15, 1952. Rehearing Denied March 27, 1952.
Appeal from the Circuit Court, Highlands County, Don Register, J.
Rosin, Paderewski Lewis, Sarasota, for appellants.
W.W. Whitehurst, Wauchula, for appellees.
Appellants are licensed processors and shippers of citrus fruits, located at Arcadia, Florida. Appellee John Smoak is a licensed buyer and producer of citrus fruits. In July 1946, appellants purchased a large amount of bulk citrus fruits from Smoak, for $6,500, a portion of which were on the grove of Ed Durrance, paying $2,000 cash, leaving a balance of $4,500. December 21, 1946, Smoak was paid $1,000 and on December 25, 1946, he was paid an additional $2,000. Appellants contend that the payments of December 21st and 25th were made as per an agreement which amounted to an accord and satisfaction and were in full settlement of all amounts due on the original purchase. Smoak contends on the other hand that these payments were made in advance on the purchase contract without obligation on his part.
January 4, 1947, appellants as complainants filed their bill of complaint in which they set up these facts and further alleged that on January 1, 1947, Smoak notified them that they could not pick the fruit on the Durrance grove unless they paid the balance of $1,500 which was included in the accord and satisfaction agreement. The bill also alleged that for the $5,000 paid on the purchase contract appellants had picked only 1,303 boxes of fruit and that there remained on the Durrance grove approximately 1,000 boxes which Smoak had forbidden them to pick. The bill prayed that the plaintiffs be declared to be the absolute owners of the fruit on the Durrance grove, that if it be found that Durrance had any interest in the fruit whatever, that an accounting be ordered and that pending determination of the cause a receiver be appointed to take charge of the fruit.
There was an answer to the bill and on final hearing the chancellor found (1) that there was a complete accord and satisfaction agreement between the parties as of July 30, 1946. The amount paid to consummate said agreement was the $3,000 paid to Smoak December 21st and 25th, 1946. (2) That the accord and satisfaction agreement was breached by Smoak January 1, 1947 in that he refused to permit appellants to pick the fruit on the Durrance grove without additional compensation. (3) That at the time the accord and satisfaction agreement was breached appellants were the owners of said fruit and had paid for it in full. (4) That a receiver was appointed January 6, 1947 by agreement of the parties and while the fruit was in the hands of the receiver it was injured by cold and 427 boxes brought only $106.75, though at the time of the breach of the accord and satisfaction agreement plaintiffs had picked 1,310 boxes and there remained 1,519 boxes on the trees worth $2 per box. (5) That the equities were with the plaintiffs and that the measure of damages allowed them should be the amount paid the receiver after the cold had rendered the fruit worthless, namely $106.75. This appeal is from the final decree.
The primary question we are concerned with is the measure of damages for the fruit at the time the accord and satisfaction agreement was breached. Appellants contend that it was $2 per box for the fruit shown to be on the trees at that time. Appellees contend, and the chancellor so held, that it was the amount paid the receiver for the fruit when it was sold, to wit: $106.75.
Appellants base their contention on the fact that when the accord and satisfaction agreement was made the fruit was paid for in full, that there were 1,510 boxes on the Durrance grove, valued at $2 per box and that they were prevented from gathering said fruit by appellees, hence this suit for compensation and appointment of receiver. They now contend that they should be paid for the fruit at the market price of $2 per box, because appellees' delinquency was the reason for not having it off the trees before the freeze. Appellees deny that they prevented appellants from gathering the Durrance fruit and they say that the appointment of a receiver was unnecessary. They also allege that while the crop of fruit was in the hands of the receiver it froze and was rendered worthless, and being so, all that appellants can now claim is the amount the fruit brought when sold by the receiver.
The chancellor held that the Durrance fruit became the property of appellants under the accord and satisfaction contract, that it belonged to appellants when the receiver was appointed, that appellants were prevented from removing the fruit by Smoak on January 1, 1947, in that he demanded additional compensation before doing so, notwithstanding the fact that it had been paid for in full. The evidence is in conflict on some of these points but the chancellor found that Smoak prevented appellants from picking the fruit.
The record shows that the receiver was appointed by consent of the parties. The general rule is that the value of property lost in the hands of a receiver, or for failure of duty on the part of the receiver must be borne by the owner of the property, but this is not the rule where, as here, the owner was prevented from gathering the fruit by the one from whom it was purchased, appellee in this case.
It appears from the pleadings that appellee notified appellants January 1, 1947, that they could not gather the fruit on the Durrance grove unless they paid him an additional sum of $1,500. This advice precipitated the instant suit, the appointment of the receiver and the delay in gathering the fruit. A severe cold followed, the fruit was frozen and became worthless. Under such circumstances the measure of damages is the value of the fruit at the time the accord and satisfaction agreement was breached. Bowers v. Dr. P. Phillips Co., 100 Fla. 695, 129 So. 850; F.A. Bartlett Tree Expert Co. v. Hartney, 308 Mass. 407, 32 N.E.2d 237; Long's Executors v. Bischoff, 277 Ky. 842, 127 S.W.2d 851.
The judgment appealed from is reversed with directions accordingly.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.