Opinion
No. 69-346.
May 5, 1970. Rehearing Denied May 22, 1970.
Appeal from the Civil Court of Record for Dade County, Leland B. Featherstone, J.
Horton Schwartz and Guion T. DeLoach, Miami, for appellant.
Pallot, Silver, Pallot, Stern, Proby Adkins, Miami, for appellee.
Before CHARLES CARROLL, HENDRY and SWANN, JJ.
Plaintiff below, Safe-T-Lawn, Inc., appeals from an adverse final judgment rendered in favor of the appellee (defendant).
Safe-T-Lawn sued the defendant, Agricultural Engineering Association, on an open account for $2,638.81. Defendant answered and pleaded a set-off of $1,254.40. Defendant counterclaimed against Safe-T-Lawn for breach of an oral agreement in which Safe-T-Lawn allegedly agreed to reimburse the defendant for labor and travel costs it incurred in making certain repairs and replacements to the defective units which Safe-T-Lawn had supplied to the defendant. Safe-T-Lawn ultimately denied the set-off and allegations in the counterclaim. Safe-T-Lawn suffered an adverse final judgment on the counterclaim and has appealed.
The appellant's sole point on appeal is directed towards the alleged error of the trial court in its rulings which permitted certain evidence to be introduced during the trial of the issues raised by the counterclaim.
Safe-T-Lawn, Inc. claims reversible error was committed by the admission, over objection, into evidence of certain summaries and testimony based thereon, since the summaries were made from other records of the defendant which were not produced or introduced into evidence.
The summaries and testimony established that the defendant had suffered damages resulting from its repairs to 820 defective twist collars supplied by Safe-T-Lawn in the amount of $1,827.95. We do not find reversible error insofar as the admission of the testimony and summaries into evidence by the trial court. See § 92.36, Fla. Stat., F.S.A.
The evidence as to damages suffered by the defendant for its repairs and costs to the additional 1400 twist collars was based on testimony concerning the average amount of its repairs and costs for the 820 twist collars.
The evidence as to the damages suffered by defendant because of labor and costs on the remaining 1400 twist collars amounts to speculation and conjecture and is not sufficiently certain to stand. See Florida Ventilated Awning Co. v. Dickson, Fla. 1953, 67 So.2d 215; Kennedy Ely Ins., Inc. v. American Employers' Ins. Co., Fla. App. 1965, 179 So.2d 248; and Berwick Corp. v. Kleinginna Investment Corp., Fla. App. 1962, 143 So.2d 684.
Since the court had permitted the summaries and testimony concerning the first 820 twist collars into evidence, the appellee may have been misled concerning the sufficiency of the proof necessary to establish the damages suffered by it on the remaining 1400 twist collars.
The final judgment herein appealed is affirmed as to the damages proven as a result of the repairs and costs to the 820 defective twist collars and is reversed and remanded for a new trial as to the damages claimed for the remaining 1400 twist collars. The cause is remanded for a new trial as to the damages, if any, suffered by appellee on the remaining 1400 twist collars.
We have considered the point raised by the cross-appeal and find it to be without merit.
Affirmed in part; reversed and remanded in part.
Here, out of a large number of items involved in a contract for irrigation equipment, parts known as "twist collars" on 2,220 of the equipment units were defective, in recognition of which the seller had agreed to reimburse the purchaser (counterclaim) for its "labor cost and travel expense" for the needed repair or alteration thereof.
At the time the defendant was required to plead, it had repaired 820 of the defective units, and therefore had tangible evidence of the repair cost of that number. However, since defendant's claim for damages incident to the defective twist collars represented a matter arising out of the transaction upon which the plaintiff had brought suit, the defendant was required, under the compulsory counterclaim rule (1.170(a), Rules of Civil Procedure, 30 F.S.A.), to counterclaim for the damages it claimed for all defective twist collars (including the 1,400 not yet repaired).
I concur in the majority's affirmance of that part of the trial court's judgment which awarded damages to the counterclaimant for its expenses in repairing 820 of the defective twist collars, based on evidence consisting of certain records of the expense incurred in repairing or altering them.
I am impelled to dissent from the ruling of the majority which held that the unit cost of repair as disclosed by the (acceptable) evidence of the expense of repairing or altering the 820 twist collars, could not properly be applied as evidence for determining the expense per unit which would be involved in similarly repairing or altering the additional 1,400 twist collars which appeared to be defective in the same respect.
If the evidence of cost of repairs previously made had related to only a few of the defective twist collars, I could agree that the cost of their repair might not be considered reliable to establish the per unit repair cost which would be encountered in later repairing the large number of items involved, notwithstanding all were similarly defective. But, in my opinion the demonstrated cost of repair of more than one third of the total number of the defective units was properly regarded by the trial court to furnish an acceptable evidentiary standard for determining the reasonable and necessary per unit repair cost for the remaining 1,400.
For the reasons stated I would affirm the judgment entered on the counterclaim granting (repair cost) damages for all 2,220 defective twist collars, and not remand the cause for new trial on damages regarding the 1,400 which had not been repaired by the time of pleading and judgment.