189 So. 2d 628 | Fla. | 1966
The decision of the district court in this case is reported in 179 So.2d 584.
“However, the original notes were already in default for more .than eight months, the original security for these notes had proven to be of no value, no action had been taken against the assignor who died before' the commencement of this action, and the renewal period was for one month only. Estoppel being a doctrine based upon principles of justice and morality, we conclude that plaintiff has not sufficiently shown that it has been injured, as it is interpreted under the law, and that no injustice will be done if defendant is not estopped to assert its defense against the plaintiff.
“The evidence not being sufficient to establish an equitable estoppel, we find that the trial judge was correct in finding that there was no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law.”
On the question of jurisdiction, the statement “plaintiff has not sufficiently shown that it has been injured” necessarily establishes a concession by the court that there exists a triable issue of fact. It is elemental that, under such circumstances, a summary judgment such as was entered in this case is improper and such decision, therefore, to that extent conflicts with a long line of decisions of this Court and other district courts of appeal.
It is not necessary to weigh the injury in order to determine the applicability of the doctrine of estoppel. Under former decisions of this Court, injury is presumed in the circumstances set forth in this record.
The decision of the district court is quashed and the cause remanded for further proceedings in accordance with this opinion.
. Sconyer v. Scheper (Fla.App.2d 1960), 119 So.2d 408; Smith v. Musso (Fla.App.2d 1963), 151 So.2d 475.
. Lee v. Quincy State Bank (1937), 127 Fla. 765, 173 So. 909; Reese v. Schenck (1932), 107 Fla. 166, 144 So. 313.