Alvarinia v. Rouch

95 So. 127, 85 Fla. 40

Opinion

Per Curiam.

In an action of assumpsit on the common counts, judgment was rendered for the plaintiff for the price of several car loads of eggs. The defendants took writ of error.

The evidence does not clearly show a sale to the defendants of all the cars of eggs under such conditions as warrant a recovery of the entire amount claimed on the issues made. See Blue Lake Celery Co. v. Peyton-Lofberg Live Stock Co., decided last term.

The evidence tends to show separate transactions for different cars of eggs rather than a running account between the parties involving continuous shipments of cars of eggs. Irrelevant portions of the replication should be eliminated.

As liability of the defendants under the declaration for definite amounts is not clearly shown, this is not a proper case for suggesting a remittitur..

Reversed for a new trial.

All concur.