Opinion
No. M-124.
July 9, 1970. Rehearing Denied August 3, 1970.
Appeal from the Circuit Court, Duval County, Henry F. Martin, Jr., J.
Edward McCarthy, Jr., of Bryant, Freeman, Richardson Watson, Jacksonville, for appellant.
William D. Barfield, Jacksonville, for appellee.
This is an appeal from a final judgment and amended final judgment in favor of the plaintiff below, appellee herein, finding the defendant (appellant) to be indebted to the plaintiff appellee, in the principal sum of $3281.92 plus certain costs and interest.
The basic question on appeal is factual: Did the plaintiff adequately carry the burden of proof necessary to sustain the judgment found by the court? (This case was tried without a jury.)
In the record before us, a copy being attached to appellant's reply brief as part of the appendix, appears the "memorandum opinion" of the trial court. In this, the court reviews the facts to be that the appellee, or its agent in California, had been contacted by a Mr. or Mrs. Harvey Fersten in connection with the cost of moving the Ferstens to Florida. An estimate was given in an amount of approximately $1600.00, based upon an estimate load weight of 8000 pounds, with the Ferstens doing a considerable portion of the disassembling and packing. A discussion of transporting an auto was had and because of the cost thereof, about $700 or $800, it was originally decided against shipping the auto. Later there was a telephone conversation between representatives of the appellant and appellee, in which the appellant was advised that the costs would be considerably more than contained in the estimate, and from the testimony of appellee's witness, appellee was instructed to ship the "belongings" of the Ferstens and bill appellant. An objection to an extra driver was made by appellant, and acceded to by appellee.
The trial court found that the evidence was undisputed that notice was given to defendant that the costs would exceed the estimate, and that the other items were in compliance with "normal shipping procedures," which were not disputed or contradicted by the defendant.
From this set of facts, sitting as the trier of the facts, the court found that the plaintiff had carried the burden of proof necessary for a favorable judgment for plaintiff.
We agree with this finding by the trial court and there appearing sufficient competent, and uncontradicted testimony and evidence to support the findings of the trial court, we affirm the judgment appealed from.
As to the cross-appeal, we think the matter raised was one in which the trial court could and did exercise proper discretion, and therefore the order in this connection is also affirmed.
Affirmed.
CARROLL, DONALD K., and RAWLS, JJ., concur.