H. E. ENGLISH, APPELLANT,
v.
MRS. EDITH SMITH, ALSO KNOWN AS MRS. H. H. SMITH, APPELLEE
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In this equity action, H.E. English sought to establish and foreclose a lien for tree treatment services under Florida's lien statute. The trial court found that the parties had agreed to treat only diseased trees (314 trees) rather than all trees in the grove (2,628 trees), and awarded a lien of only $314. The appellate court affirmed, holding that the trial court's findings were supported by evidence and not clearly erroneous.
The trial court properly limited the lien to $314 (for the 314 diseased trees actually agreed to be treated). The evidence supported the finding that the parties' agreement covered only the diseased trees, and the trial court did not err in denying recovery on a quasi-contract or implied contract basis based on alleged acceptance of benefits.
“Nor are we justified in trying the case de novo merely because the evidence before the chancellor had been taken before a master. There is ample evidence in the record which if believed by the chancellor will support his decree finding that the actual agreement between the parties was to treat only the diseased trees and that such trees numbered 314.”
Establishes the appellate standard of review—findings of fact are not retried on appeal unless clearly erroneous, regardless of whether testimony was taken by a special master rather than jury.
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Join FLexlaw to unlock all legal intelligenceEnglish performed tree treatment services on Smith's citrus grove for psorosis (footrot disease). The parties had an oral agreement at $1 per tree, bu…
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PLEUS, Judge.
Plaintiff-appellant filed complaint in equity to establish and foreclose a lien in the alleged amount of $2,628 on the predicate of an oral agreement between him and defendant-appellee to treat the trees in defendant’s grove for a certain citrus disease known as psorosis, commonly called footrot. On answer admitting an agreement but denying the terms as claimed by plaintiff and containing a counterclaim for damages for injury to the trees, the cause was referred to a special master solely for the purpose of taking the testimony and reporting the same to the court.
The lien was claimed pursuant to Section 85.04 Florida Statutes 1955, F.S.A. and it is admitted that the agreed price was to have been $1 per tree. The plaintiff contends that the agreement was to treat all the trees in defendant’s grove, numbering 2,628; and that regardless of the agreement plaintiff knowingly permitted defendant to so treat all the trees, accepted the benefits thereof and on the theory of quasi-contract is liable. The defendant contends that the agreement was to treat only the diseased trees numbering 314 and that such treatment was the extent of her knowledge or consent.
The decree of the chancellor below denied relief on the counterclaim and granted plaintiff a lien to the extent of $314.
. Plaintiff now contends that the evidence did not support such decree; that regardless of the terms of any express oral contract the evidence was sufficient to justify an award in full on the implied contract and acceptance of benefits and that the lower court erred in denying plaintiff an award of attorney’s fees.
We dismiss the latter contention because the procedure by foreclosure in equity does not permit the award of attorney’s fees.
Nor are we justified in trying the case de novo merely because the evidence "before the chancellor had been taken before a-master. There is ample evidence in the record which if believed by the chancellor will support his decree finding that the actual agreement between the parties was to treat only the diseased trees and that such trees numbered 314 and there is likewise such evidence to justify his denial of recovery on the basis of plaintiff having knowingly permitted all trees to be treated and accepting the benefit thereof.
While in such case the decree may not be on full parity with the verdict of a jury, the rule is well settled that in such case it must be clearly erroneous before it will be disturbed by an appellate court. Farrington v. Harrison, 1928, 95 Fla. 769, 116 So. 497; Marcus v. Hull, 1939, 142 Fla. 306, 195 So. 170, 172; Bethea v. Langford, Fla.1949, 45 So. 2d 496, 498.
It not appearing that the decree below was clearly erroneous, we decline to disturb the same and therefore the cause below is hereby affirmed.
Affirmed.
KANNER, C. J., and DAYTON, Associate Justice, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. Adams, 115 So. 2d 578 (Fla. 2d DCA 1959)…taken before a Special Master, yet in either case the Chancellor’s findings should not be disturbed by the Appellate Court unless shown to be clearly erroneous. Farrington v. Harrison, 1928, 95 Fla. 769, 116 So. 497; English v. Smith, Fla.App.1957, 97 So. 2d 339. It not appearing that this finding of the Chancellor was clearly erroneous, we decline to disturb the same. During the pendency of the suit below the parties filed a stipulation quoted in part as follows: “1. The above named administrator has eff…
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Petersen v. Petersen, 166 So. 2d 631 (Fla. 2d DCA 1964)…f a jury, not to be disturbed unless shown to be clearly erroneous.’ “The master’s findings have not been shown to be clearly erroneous. See Calhoun v. Abstract Company of Sarasota et al., Fla.1950, 44 So. 2d 83, and English v. Smith, Fla.App.1957, 97 So. 2d 339.” The lower court, in the Order on Exceptions to Master’s Report before mentioned, said: “The allegations of the Plaintiff’s complaint, even though proven, do not mean these burdens were carried as required by our courts. From all the facts and ci…
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Gulf Coast Docks, Inc. v. Sinet Maurice Simon, 122 So. 2d 414 (Fla. 2d DCA 1960)…a jury, not to be disturbed unless shown to be clearly erroneous.” The master’s findings have not been shown to be clearly erroneous. See Calhoun v. Abstract Company of Sarasota et al., Fla. 1950, 44 So. 2d 83, and English v. Smith,. Fla.App.1957, 97 So. 2d 339. The decree appealed from is, accordingly, affirmed. ALLEN, C. J., and SHANNON, J., concur.…
Authorities Cited
- Farrington v. Harrison, 95 Fla. 769 (Fla. 1928)
- Bethea v. Langford, 45 So.2d 496 (Fla. 1949)
- Marcus v. Hull, 142 Fla. 306 (Fla. 1939)