48 F.2d 174 | 5th Cir. | 1931
The Blackshear Manufacturing Company, plaintiff below, sued Umatilla Fruit Company, defendant, in three counts at law, and on the conclusion of its evidence a verdict was directed for the.defendant, followed by this ■appeal.
The first count was plainly in contract, alleging that the defendant promised to sell certain fertilizers as plaintiff’s salesman to responsible parties only, and to use care and diligence in endeavoring to collect the price, but that, notwithstanding the elapsing of a reasonable time for the performance of the promise, defendant had not used due care and diligence in endeavoring to collect. The count was traversed. There was no evidence submitted of an express promise to collect with diligence. We need not inquire whether one should be implied because also there was no sufficient evidence to show a breach of it. It was proven that no considerable collection was made, but the whole tendency of the evidence was to show, not that by diligence better collection might have been made, but, on the contrary, that the debts were uncollectible.
The second amended count alleges a contract of employment of defendant by plaintiff as a fertilizer salesman, and an agreement to use defendant’s best judgment in extending credit, and plaintiff’s reliance on defend- ’ ant’s judgment, honesty, and diligence in the premises, but that defendant did not use its best judgment, but so negligently extended eredit to customers whom it knew, or should have known, were not entitled to eredit, as to dissipate the plaintiff’s property to its loss in the sum of $15,593.99. The third count is similar in its frame to the second, but adds allegations of want of good faith on the part of defendant, and want of diligence in the collections as well as in the sales. The gist of. these two counts is negligence and bad faith rather than breach of contract, the contract of employment being alleged by way of inducement as the basis for the duty of good faith and diligence. 21 R. C. L. Pleading, § 34. Under the common-law forms which obtain in Florida, these counts sound in case rather than in assumpsit. At common law
The evidence introduced tended to show a contract of employment as alleged in the counts, and the sale under it by defendant of more than $15,000 worth of fertilizers to some forty customers, all sales being made upon the judgment of the defendant and without'interference by plaintiff. The total collections made upon the notes, all of which were held by defendant, were but $100 from two customers only. Many of the customers were shown to have been at the time of the sales without property and of had financial repute in their community. Want of diligence or bad faith might well have been considered established by the jury, with consequent loss and damage to the plaintiff. The law exacts of every agent and employee diligence, good faith, and obedience to instructions in the execution of his agency or employment, and holds him liable for failures therein that occasion damage. 21 R. C. L., Prin. and Agent, § 9; 18 R. C. L., Master and Servant, § 13. The case should have been submitted to the jury on the second amended and third counts.
The court permitted witnesses to testify to the actual financial status of each customer, and to his reputation in the community, but refused to allow the witnesses to express an opinion as to whether, in view thereof, a business man of ordinary prudence would have credited him. The opinion was properly excluded. Witnesses are usually to tell what they know rather than what they think. Upon the faets detailed the jury were to form their opinion. The opinions of the witnesses could not safely aid them in doing so, and the multiplication of witnesses on the’ point might easily lead to embarrassing the trial. When all the faets can be given to the jury on an issue of negligence, it is usually best to stop there. 1 Greenleaf on Evidence (6th Ed.) § 441b; Camp v. Hall, 39 Fla. 536, 22 So. 792; Evans v. Josephine Mills, 124 Ga. 318, 52 S. E. 538; Mayor, etc., of City of Milledgeville v. Wood, 114 Ga. 370, 40 S. E. 239.
The assignment of error complaining of the exclusion of some letter cannot be considered because it fails to set out the substance of the evidence, as required by our Rule XI.
Reversed for further proceedings not inconsistent with this opinion.