T. A. Winfield, the defendant in error, hereinafter referred to as the plaintiff, sued The Griffing Brothers Company, a corporation, the plaintiff in error, hereinafter referred to as the defendant, in the circuit court of Dade county in an action for damages- for breach •of a contract whéreby the said Winfield leased to the defendant a tract of land in Dade county, upon which was located an orange grove, for the purpose of growing between the rows of grove trees nurseTy stock of various kinds for sale, said lease ,to continue for -a term of three years, and whereby, in consideration of the use of said land for such purpose, the defendant agreed to take care of the grove’trees thereon so long as- nursery stock was grown between them, and to do everything necessary for
To the declaration as amended the defendant first interposed two pleas in abatement. The first of these pleas set up as a defense that the land embraced in said contract of lease was not owned by the plaintiff in his individual capacity, but was owned by him and a third party, a stranger to the suit, as copartners, and that such third party should have been joined as a party plaintiff. The second of these pleas alleged that there was another suit pending in said circuit court in chancery in favor of the said Winfield and one R. H. Liggett as complainants agaiinst the said defendant complaining of the same breach of the same contract and praying for an injunction and for the assessment of damages for the same alleged breach of said contract, and for a decree subjecting the nursery stock of the defendant growing on said land to the payment of such damages' as may be so assessed.
To the first of these pleas in abatement the plaintiff demurred on the grounds that the facts set up therein constituted no defense to the action; and because the facts set up therein fail to show a nog-joinder of any party who lias a right to join in the prosecution of the action; and because the said plea was frivolous. The court sustained this demurrer, and this ruling constitutes the first assignment of error. There is no merit in this assignment.
The second assignment of error complains of the ruling of the court striking two additional pleas of the defendant numbered one and two, and part of an additional plea numbered four. The only feature of this assignment that is argued here, the other features thereof being expressly abandoned, is the striking by the court from the 4th additional plea of the following clause therefrom: “That adjoining said grove turned over to defendants under said contract was a similar' grove which the plaintiff had under his care and attention during the time that the defendants were acting under said contract, that
During the trial the defendant filed a fifth plea in which he particularly describes a portion of the land containing ten acres included in the contract and alleges that the same at the time said contract of lease was entered into and at the time said suit was brought was owned individually by a third party and that the plaintiff by his suit herein seeks to recover damages done to property owned by such third party. The plaintiff demurred to this plea and the court sustained such demurrer, and this ruling constitutes the third assignment of error. What has already been said in the discussion of the ruling of the court sustaining the plaintiff’s demurrer to the defendant’s first plea is fully applicable to this assignment and disposes of it adversely to the plaintiff in error. Had the suit been one not growing out of express contract, there might have been some merit in the contentions of this plea, but the suit is for alleged breaches of a written contract under seal between the plaintiff as landlord and his tenant in undisputed possession under such contract alone.
The defendant, pending the delivery of his testimony by the plaintiff as a witness in his own behalf, moved to strike the plaintiff’s testimony wherein he refemed to the land as being “his land,” 'because the title deeds were the best evidence of ownership. This motion was denied and such ruling is assigned as the fifth error. There was no error here. The ownership of the land embraced in the contract sued upon was not an issue in the case, and the references by the plaintiff-witness to it as being “my land,” was not for the purpose of proving ownership, but simply for the purpose of designating what particular parts of the land embraced in the contract had been neglected or injured by the alleged breach of the contract by the defendant.
The seventh assignment of error is that the court erred in admitting in evidence numerous conversations between M. Cobb and T. A. Winfield, M. Cobb not being a party to
The eighth assignment of error is that the court erred in refusing to strike the testimony of T. A. Winfield as to his conversation with W. D. Griffing, wherein he said that W. D. Griffing purported to be the "agent of defendant, and that his brother- Griffing had authorized him to make the contract. There is no merit in this assignment, the conversation complained of as evidence was a preliminary one had with W. D. Griffing antecedent to the making and execution of the contract sued upon, and led up to the making of such contract. It having been admitted that the defendant made the contract, it could have done it no possible injury to detail a preliminary conversation with an agent of the defendant company that led eventually to bringing the parties into contractual relations with each other, when the detail of such conversations was not designed and did not tend to affect,
The ninth, tenth, eleventh and twelfth assignments of error complain of the admission by the plaintiff in evidence of four several letters written by the plaintiff to the defendant company on different dates complaining of its neglect of his grove, and detailing to them divers particulars wherein they were failing to comply with their contract with him. All of these letters were objected to on the ground that they were self serving declarations by the plaintiff to the detriment of the defendant. The court expressly cautioned and instructed the jury that these letters were admitted for the sole purpose of proving that the plaintiff gave the defendant notice and warning that he objected to the manner in which they were complying with their contract and that he did not acquiesce therein. Thus limited there was no objection to the admission of such letters, particularly when the same party who wrote them subsequently at the trial when under oath as a witness detailed’substantially the same short-comings of the defendant in the treatment of the grove as were set forth in said letters.
The thirteenth assignment of error complains of the court’s permitting the plaintiff, as a witness, to’ testify as to a disease called “wither-tip” being allowed by the defendant to develop in his grove while the same was under defendant’s care, there being no allegation in the declaration as to wither-tip. We find in the evidence of the witness T. A. Winfield in the record in his first examination in chief that he did testify as to the existence of a disease called wither-tip in his grove that developed there in consequence, as he testified, of the negligent treatment of his
The fourteenth assignment of error is not argued and will consequently be deemed to have been abandoned.
The fifteenth and sixteenth assignments of error are both predicated upon the general charge of the court given at the plaintiff’s request. In the briefs filed here under the discussion of the fifteenth assignment of error it is contended that the charge defining the measure of damages applicable to the case was erroneous, and that this charge was further erroneous in instructing the jury that they could allow interest on the amount of damages, if any, sustained by the plaintiff from the date of the institution of the suit. The charge in reference to the measure of damages Avas as follows: “If you should find a verdict for the plaintiff on the first count of the declaration, and should find from the evidence that the plaintiff’s land and the citrus trees growing thereon haA^e been damaged by failure of defendant to perform its said contract, then you shall allow the plaintiff as damages such a sum of money as shall equal the difference, if any, between the value of the land on the 7th day of March, 1904, and what said land would have been worth on the 7th day of March, 1904, had the defendant in all respects complied with its contract.”
The second count of the declaration claimed damages for the abandonment of the plaintiff’s grove by the defendant on March 1st, 1904, and alleges and claims damages for the consequent care and attention to said grove by the plaintiff from that date to the time when said contract would have expired by its terms, March 25th, 1905. On this count the charge as to the measure of damage
The first of the quoted charges applicable to the first count of the declaration states the rule of damages in such a case correctly. Growing fruit trees are considered as part of the land, and where damages are claimed, as here, for breach of a contract to take care of and cultivate fruit trees growing upon land for a term of years, the difference between the value of the land at the date of the end of the term contracted for in the event the defendant had faithfully complied with his contract, and its lesser value at said date resulting from the failure of the defendant to comply with its contract, is the correct measure of damage in such a case as was substantially charged here. Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. Rep. 412; Montgomery v. Locke, 72 Cal. 75, 13 Pac. Rep. 401; Shannon v. Hannibal & St. J. Ry. Co., 54 Mo. App. 223; Dwight v. Elmira, C. & N. R. Co., 132 N. Y. 199, 30 N. E. Rep. 398. In reference to the objection that these charges permitted the recovery of prospective damages that had not accrued at the time of the institution of the suit, the rule is that when a cause of action accrues there is a right, as of that date, to all the consequent damages which will
Under the sixteenth assignment of error it is claimed that the judge erred in instructing the jury limiting their consideration of the letters written by the plaintiff to the defendant complaining of their treatment of his grove for any other purpose than to show that the plaintiff gave them notice therein of his dissatisfaction. This question has already been disposed of above in.the discussion of the ninth, tenth, eleventh and twelfth assignments of error.
The seventeenth assignment of error is based upon the court’s permitting the plaintiff to prove damages sustained and money expended in the care of the grove after the commencement of suit. The rule above stated as to the recovery of prospective damages disposes of this assignment adversely to the plaintiff in error.
The eighteenth assignment of error complains of the refusal of the court to give a charge, numbered 8, requested by the defendant. We cannot find any basis of fact in the record either in the pleadings or evidence, upon
The nineteenth assignment of error is predicated upon the refusal of the court to give the following charge, requested by the defendant: “Where a contract provides for the’ doing of a certain action or- the performance of a certain deed, but said contract does not specify when said act shall be done or performed, a reasonable time is implied, and if said act is performed yütliin a reasonable time the terms of the contract in that particular has been fulfilled.” Under the facts of this case the court committed no error in refusing to give this charge. The duties to be performed by the defendant under this contract, such as budding, spraying, transplanting and cultivating the plaintiff’s orange trees required that such acts should be done at certain and particular times or seasons of the year, which would not permit of delay or procrastination, and it would have been error to instruct the jury that such acts could be done at any reasonable time.
The twentieth assignment of error complains of the refusal of the judge to give an instruction numbered 10, requested by the defendant. However correctly this instruction may have announced the law, yet its subject had been already substantially and fully covered by 'other instructions already given to the jury by the judge at the request of the defendant, and there was, therefore, no error in refusing to reiterate by giving this charge.
Finding no- error the judgment of the court .below in said cause is hereby affirmed at the cost of the plaintiff in error.