73 Fla. 1050 | Fla. | 1917
The first, second and third counts-of the declaration herein are as follows:
“Comes now the plaintiffs, Grady H. Stevens and Ralph B. Knight, of the County of St. Johns and the State of Florida, by his attorneys Hilburn & Merryday, and sues the defendant, Independent Fertilizer Company, a corporation organized and existing under the laws of the State of Florida, and having an office, and place of business in Duval County, Florida.
“(a) For that whereas on and prior to the 15th day of October, A. D. 1912, and ever since said date, the defendant has been engaged in the business of manufacturing and selling commercial fertilizer in the State of Florida, and that on or about, to-wit: that 15th day of October, A. D. 1912, in the County of St. Johns, State of Florida, the plaintiff entered into a bargain or contract with the defendant wherein and whereby the plaintiff agreed to purchase and the defendant agreed to sell and deliver to the plaintiff in said County of St. Johns, thirty-five .tons of commercial fertilizer for the agreed price of $1,050.00; and that it was the duty of the defendant upon selling or offering said commercial fertilizer or fertilizing material for sale, to securely attach a label or tag to each and every package, barrel or bag of said commercial fertilizer, so sold or offered for'sale, showing the number of net pounds of fertilizer in s'aid package, the name, the brand and trade mark under which said fertilizer was sold, and the name and address of the manufacturer thereof, and the chemical analysis of such fertilizer, stating the minimum percentage of ammonia and the source from which such ammonia was derived, the minimum
“(b) That after the said 15th day of October, 1912, and during the winter of 1912 and 1913, the defendant delivered to the plaintiffs thirty-five tons of fertilizing material in St. Johns County, Florida, and to each package thereof was attached a tag upon which the following* representations, statement, guarantee, and analysis was given and made:
“100 POUNDS
“HASTINGS MEAL MIXTURE.
“Guaranteed Analysis.
“Moisture at 212 degrees Fahrenheit, not
exceeding --------------- 10 per cent.
Available Phosphoric Acid, not less than_ 7 per cent.
Ammonia, Actual and Potential, not less than --------------------------4 per cent.
Derived- from Blood and Bone, and C. S. Meal.
Potash (K2O), water soluble, not less than yy2 per cent.
Chlorine, not exceeding_______________ 1 per cent.
Made from H. G. Blood and Bone, Bright Cotton Seed-Meal, H. G. Acid Phosphate, H. G. Potash.
“Manufactured by
“INDEPENDENT FERTILIZER COMPANY, JACKSONVILLE, FLORIDA.
“(c) And the plaintiff says that the amount demanded by the defendant from the plaintiff for said fertilizing material so purchased was $1,050.00.
“(e) And that such analysis was made by the State Chemist of the State of'Florida, on or about the 13th day of April, 1914, and a certificate of said analysis was furnished by said State Chemist to the plaintiffs, which said certificate is hereto attached and made a part of this declaration as if herein set forth in full.
“Wherefore 'the plaintiffs say that the defendant by reason of the facts stated herein, became, was, and still is indebted to the plaintiffs in a sum of money equal to twice the amount demanded by the defendant for said fertilizing material, to-wit: $2,100.00.
“Wherefore the plaintiffs sue the defendant and claim damages in the sum of $4,500.00.
“And for a second count plaintiffs aver all of the averments contained and stated in paragraphs numbered (a), (b), -(c), (d), and (e.), of the first count of this declaration and say that upon said certificate being so furnished as aforesaid, plaintiffs found that said fertilizing material so sold under said guaranteed analysis was deficient in certain of its constituent elements, that is to say it did not contain the percentage of Available Phosphoric Acid which said tag and guaranteed analysis guaranteed said fertilizing material to contain.
“And these plaintiffs say that they discovered from said analysis so made and furnished as aforesaid that tljey had been defrauded by reason of the deficiencies herein-above specified.
“And plaintiffs claim damages in the sum of • $4,500.00.
“And for a third count plaintiffs aver all of the averments contained and §tated in paragraphs numbered (a), (b), (c), (d), and (e) of the. first count of this declaration and say that upon said certificate being so furnished as aforesaid, plaintiffs' found that said material so- sold under said guaranteed analysis was adulterated in that it contained a greater percentage of Chlorine than it was represented to contain on the guaranteed analysis attached to each package thereof.
“And these plaintiffs say that they discovered from said analysis so made and furnished that they had been defrauded by reason of the' adulteration hereinabove specified. .
“Wherefore the -plaintiffs say that the defendant by reason of the facts stated herein, became, was and still is indebted to the plaintiffs in a sum of money equal to twice the amount demanded by the defendant for said fertilizing material, to-wit: $2,100.00.
“Wherefore the plaintiffs sue the defendant and claim damages in the sum- of $4,500.00.”
As counsel for -the. plaintiff in error state in their brief that “the fourth count we concede was bad upon the ground that it was duplicitous,” such fourth count will not be set out here.
In sustaining a demurrer'to the first three counts the trial court stated that it was upon the grounds that the declaration “does not set forth facts to support the conclusion alleged that the plaintiff was defrauded” and
Upon the plaintiffs announcing that they “will abide by their declaration,” a final judgment on the demurrer was rendered for the' defendant, and the plaintiffs took writ of error. 1
The sections of the statute referred to are as follows:
“Any person purchasing any fertilizer from any manufacturer or vendor in this "State for his own use, such person being a\citizen of this State, may submit fair samples of said fertilizer to the Commissioner of Agriculture for analysis. But in order to protect the manufacturer or vendor from the submission of analysis "of spurious samples, the person selecting the santie shall do so in the presence of two or more disinterested persons, which samples shall be taken from one or more packages and bottled, corked and sealed in the presence of said witnesses, and this sample package or bottle placed in the hands of a disinterested person, who shall forward the same, at the expense of the purchaser,. to the Commissioner of Agriculture when the person so desires; and" upon the receipt by him of any such sample packages, the Commissioner of Agriculture is hereby authorized to require the State Chemist to anafyze the' same, and he shall return to such purchaser or purchasers a certificate or certificates of analysis. The certificate shall in all cases set forth the. component parts of said fertilizers, with their, respective qualities, date of analysis and name or
“Any person purchasing any fertilizer or fertilizing materials from any manufacturer or vendor who shall upon analysis by the State Chemist discover that he has been defrauded by reason of adulteration or deficiencies of constituent elements, either in quality or quantity, in the fertilizing materials so purchased, shall recover in any action he may institute, upon proof of the fact, twice the amount paid to or demanded by the manufacturer or vendor for the fertilizer or fertilizing material so purchased. But in all cases where the vendor is an agent for the manufacturer, or sub-agent of such agent, the judgment of the court shall be rendered against the manufacturer. In case any purchase be made of any manufacturer or agent of any person or persons residing out of the State of Florida, manufacturing, compounding or furnishing for sale any such commercial manure or manufactured fertilizer, cotton seed meal, castor pomace, tobacco stems, tobacco dust or tobacco meal, the purchaser thereof, may, at his option, proceed by attachment as now provided by law in case of non-resident and absconding debtors, against any such property, rights or credits of any person or persons selling, manufacturing, compounding or furnishing said manures or fertilizer's when such property, rights or credits can be found within the limits of the State.” Sections 1271 and 1272 General Statutes, 1906, Florida Compiled Laws, 1914.
The statute gives a right of action to any person purchasing any fertilizer to recover “twice the amount paid
■ It is not proper to here discuss the constitutionality of the statute, since the declaration is insufficient to state a
Affirmed.
Browne, C. J., and Taylor, Shackleford and Ellis, JJ., concur.