Opinion
December 19, 1952. Rehearing Denied January 9, 1953.
Appeal from the Circuit Court for St. Lucie County, A.O. Kanner, J.
Anderson Nadeau, Miami, for appellant.
Angus Sumner and Sumner Sumner, Ft. Pierce, for appellee.
This is an appeal from a final judgment growing out of a suit involving a real estate commission.
There were material disputes and conflicts in the evidence as to whether or not the real estate agent was given a definite listing and with definite terms by the owner. There was likewise much conflict in the testimony as to whether or not the real estate agent had found a purchaser, ready, able and willing, to buy under the terms of the listing. If all of the testimony had been permitted to go to the jury as to these matters, the verdict of the jury would have been a determination of these conflicts in the testimony.
Material written documentary evidence bearing upon the conflicts in the testimony and which may have settled these conflicts was withheld from the jury.
It appears from the testimony that the appellee secured a check from a prospective purchaser and simultaneously therewith a written contract to purchase.
The appellee was permitted to testify with reference to some of the terms of this written contract when the contract admittedly was in Court and was in the possession of the appellee. This testimony was received and admitted by the Court over the objections of the appellant.
Later on, during the trial, the appellee was called as a witness for the appellant and testified that he had the prospective purchaser sign a written contract and that he had it in his possession. The witness was asked if he would produce the contract and he replied, "Sure," and then the following proceedings took place:
"Mr. Sumner: We object to it on the grounds it is immaterial whether or not there is a written contract. He has raised the same objection this morning, and it is immaterial whether he has got a written contract.
"The Court: Are you objecting on the grounds of the failure to give notice?
"Mr. Sumner: Yes, sir.
"The Court: Along with the other issues?
"Mr. Sumner: Yes, sir. He didn't give us a notice as required by the statute.
"The Court: I am going to adhere to the ruling I have heretofore made on that. I will deny the request for the production."
The refusal of the Court to permit the witness to produce the contract by sustaining the objections made by the attorney for the appellee was reversible error.
The contract was in Court and it was in the possession of the appellee who was the witness on the witness stand. The witness had testified about the contract and even some of the terms of the contract which were in dispute. The contract itself was the best evidence and should have been produced and admitted.
Under the circumstances appearing in this case there was no merit in the contention that it was immaterial or that the rule with reference to notice had not been complied with. Liddon v. Board of Public Instruction, 128 Fla. 838, 175 So. 806; Boatright v. Heirs of Porter, 32 Ga. 130; and Field v. Zemansky, 9 Ill. App. 479.
When the written contract was in Court in the possession of one of the parties to the litigation and such party had testified not only as to the existence and possession of the contract but as to some of its terms, the reason for giving notice had disappeared. There could have been, under the circumstances of this case, no inconvenience, no surprise, or any other element requiring the giving of notice.
Having reached the conclusion which we have, it is unnecessary to consider or discuss the other assignments of error, as the cause must be reversed for a new trial.
Reversed for further proceedings in accordance with this opinion.
TERRELL, Acting C.J., and ROBERTS, and DREW, JJ., concur.