L. C. HUCKLEBERRY AND JACK YODER, D/B/A ACME DIE & SUPPLY, APPELLANTS,
v.
DAVIS DOUBLE SEAL JALOUSIES, INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A seller's lien rights on a chattel are lost upon delivery to the buyer, and a replevin action cannot be joined with a counterclaim for damages independent of possession.
Appellants manufactured an automatic die for appellee under contract. Appellee took possession, returned it for corrections, but appellants retained i…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Defendants appeal from a final judgment in a replevin action which awarded possession of an automatic die to the plaintiff and dismissed the defendants’ counterclaim. The automatic die, the subject of the replevin action, was one of five items manufactured by the appellants for the appellee pursuant to a written contract. The die was delivered to the appellee and was reacquired by the appellants for the purpose of making corrections. Corrections were not made but the appellants continued to hold the die, demanding payment in full for all work done under the contract.
Appellee instituted the replevin action, posted a replevin bond and secured possession of the automatic die when the appellants failed to post a forthcoming bond. The appellants answered, pleading not guilty and claimed a lien for the unpaid balance on the contract. Appellants also *521counterclaimed for the amount due and owing on the contract and sought punitive damages. The judgment from which appeal is taken followed a trial before the court without a jury.
Appellants have raised three points which we consider warrant discussion. First, the court erred in finding that the appellee was entitled to a judgment of possession. Second, the court erred in entering a judgment without determining the special interests of the parties. Third, the court erred in striking the counterclaim of the appellants.
Under the first point, the appellants’ basic argument is that until the full contract price was paid by the appellee, it was not entitled to possession and therefore the judgment awarding possession to appellee was error. Collateral to this argument is the appellants’ contention that since the balance due on the contract was not paid, the appellants, as sellers, would have a lien on the chattel. These contentions may have had merit if the appellants had not delivered possession of the chattel to the appellee. On the last delivery of the chattel to appellants by appellee, it was understood that the appellants would attempt to correct certain features of the die complained of by the appellee and return the same. Instead, appellants announced that they would make no more corrections but would hold the die until the contract price had been paid in full. Assuming, but not deciding, that appellants may have originally had a right to a lien (§ 85.12, Fla.Stat., F.S.A.) for the unpaid balance of the purchase price, nevertheless, such lien rights as they may have had were lost upon a delivery of the die to the appellee. See Foster v. Thornton, 131 Fla. 277, 179 So. 882, 892. A re-delivery by appellee for the express purpose of making alterations would not revive appellants’ lien rights for the unpaid balance of the purchase price, but would at most constitute the basis of a lien for the alterations made. See 46 Am.Jur., Sales, § 525, p. 689. Accordingly, we find appellants’ first point to be without merit.
The appellants contend that the court should have determined their special interest in the property replevied, being the unpaid balance due under the contract, and awarded the appellants a judgment on their answer and counterclaim. Since the property replevied was not returned under forthcoming bond to the appellants, the only triable issue before the court was a determination of who was entitled to possession. The trial judge concluded that the appellee was so entitled and pursuant to § 78.18, Fla.Stat., F.S.A., entered judgment accordingly for appellee. It is only when the court awards judgment against the plaintiff for possession of the property and against the plaintiff and his surety for the value thereof that the court is authorized to determine and award the special interest in the property replevied. See §§ 78.19 and 78.21, Fla.Stat., F.S.A. In this instance, the right under the statute for determination of special interest never existed for the reason that the judgment of possession was in favor of the plaintiff where the goods had not been delivered to the defendants upon forthcoming bond.
Replevin is a possessory statutory action at law in which the main issue is the right of possession. See Klein v. G. F. C. Corporation, Fla.App.1958, 103 So.2d 120. By statutory admonition,1 replevin cannot be joined with other causes of action. Consequently, appellants’ counterclaim grounded upon a contract which claimed damages independent of the replevin action and where the claim did not represent a specific charge against the property sought to be replevied, was merely an attempt to interject into a possessory action an issue condemned by the statute. See Seven Seas *522Frozen Products v. Fast Frozen Foods, Fla.1949, 43 So.2d 181, and Millsom v. Demmon, 107 Fla. 955, 144 So. 332.
Failing to find error in the judgment ap- . pealed, it is accordingly affirmed.
PEARSON and CARROLL, CHAS., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Maye G. Neil v. S. Fla. Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA 1981)…acruz v. Peninsula State Bank, 221 So. 2d 772 (Fla. 2d DCA 1969). While under former Section 46.08, Florida Statutes, no action could be joined with, or counterclaim filed against, a replevin action, Huckleberry v. Davis Double Seal Jalousies, Inc., 117 So. 2d 519 (Fla. 3d DCA 1960), the repeal of that statute paved the way for counterclaims to replevin. Robinson v. Cinema International, Ltd., 356 So. 2d 843 (Fla. 4th DCA 1978) (allowing permissive counterclaim in replevin action, but erroneously employing co…
-
Delacruz v. Peninsula State Bank, 221 So. 2d 772 (Fla. 2d DCA 1969)…is supplied). Replevin is a possessory statutory action at law in which the main issue is the right of possession, and in essence partakes of an action in rem rather than in per-sonam. Huckleberry v. Davis Double Seal Jalousies, Inc., Fla.App.1960, 117 So. 2d 519; Southside Atlantic Bank v. Lewis, Fla.App.1965, 174 So. 2d 470. So the words used by the bank in its Court papers, even if they had been defamatory, were privileged and could not constitute libel. (b)Malicious prosecution. The case attempted to…
-
SAG Harbour Marine, Inc. v. Fickett, 484 So. 2d 1250 (Fla. 1st DCA 1981)…not operate to divest Sag Harbour of its title and right to possession, nor did appellees’ unauthorized removal of the boat from Maryland to Florida revive any right of possession in appel-lees. See Huckleberry v. Davis Double Seal Jalousies, Inc., 117 So. 2d 519 (Fla. 3d DCA 1960). As the court erred in awarding possession of the Golden Topaz to appellees, the judgment is reversed and the case remanded with directions to enter a judgment for appellant in accordance with this opinion. In view of this dispos…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Foster v. Thornton, 131 Fla. 277 (Fla. 1937)
- Seven Seas Frozen Prods. v. Fast Frozen Foods, 43 So. 2d 181 (Fla. 1949)
- Rubin S. Klein v. G. F. C. Corp., 103 So. 2d 120 (Fla. 3d DCA 1958)
- Millsom v. Demmon, 107 Fla. 206 (Fla. 1932)