HAYDEN, STONE INCORPORATED, A DELAWARE CORPORATION, APPELLANT,
v.
NICK VAN ECHTELD, APPELLEE
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The court held that the trial court erred in entering a directed verdict for the defendant, as there was sufficient evidence and inferences to support the plaintiff's case.
Plaintiff, a securities/commodities broker, erroneously credited defendant's account with unearned funds, which defendant then spent. A corrected stat…
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We reverse the directed verdict entered in favor of defendant and remand for a new trial.
The procedure and criterion to be employed in considering a motion for a directed verdict are well known. 32 Fla.Jur., Trial, §§ 91-98 (1960); Little v. Publix Supermarkets, Inc., Fla.App. 1970, 234 So. 2d 132; Jones v. Hoffman, Fla.App.1970, 239 So.2d 76; Williams v. Dade County, Fla.App.1970, 237 So.2d 776; Hurst v. Krinzman, Fla.App.1970, 237 So.2d 333. When the evidence here is considered in that light, we feel that the trial court erred as there can be gleaned evidence and inferences in favor of plaintiff which are sufficient to defeat such motion.
Defendant was highly active in the purchase and sale of securities and commodities, through his brokerage accounts with plaintiff. During the course of their business plaintiff erroneously credited the defendant’s account with an unearned sum which defendant later spent and dissipated in other trading activities. A corrected statement reflecting the correct situation and amounts due was transmitted to defendant and not paid, giving rise to the suit.
It must be said that the action was not properly or definitively conceived and presented. There was confusion as to whether the suit was on the contract, an account stated, or some other theory, all of which made'uncertain the requirements of proof. Regardless, the underlying indebtedness and liability therefor can be dimly discerned, *678and the defendant’s admissions and equivocations are enough, at least at this juncture, for the suit to remain in court for disposition in regular course. Upon remand it is our hope that the cause of action will be made certain and that these concerned will be better advised as to the methods and ways of proving same.
Under the circumstances it would not be helpful for us to discuss the defendant’s tardy cross assignments of error.
Reversed and remanded.
REED, C. J., WALDEN and MAGER, JJ., concur.
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Rolly Marine Serv., Inc. v. Sullivan, 273 So. 2d 770 (Fla. 4th DCA 1973)…endant’s motion, and the memo-randa relied upon by the trial court, it is safely hazarded that this case got off the track when court and counsel confused the actions of open account and account stated. See Hayden, Stone Incorporated v. Van Echteld, 267 So. 2d 677 (Fla.App.1972). Clearly, this was an action upon an open account as plaintiff employed, almost verbatim, Form No. 1.932, Florida Rules of Civil Procedure, 31 F.S.A., which is entitled, “Open Account,” (and not Form No. 1.933, entitled “Account State…1 / 2
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Simon v. Pope, 279 So. 2d 54 (Fla. 4th DCA 1973)…[*55] PER CURIAM. Upon a consideration of the record before us in light of the decisions in Tillman v. Baskin, Fla.1972, 260 So. 2d 509, and Hayden, Stone Incorporated v. Van Echteld, Fla.App.1972, 267 So. 2d 677, we are of the opinion that the lower court erred in granting defendants’ motion for a directed verdict and entering final judgment thereon. Accordingly, the final judgment is reversed and the cause remanded to the trial court for a new trial, with…
Authorities Cited
- Little v. Publix Supermarkets, Inc., 234 So. 2d 132 (Fla. 4th DCA 1970)
- Hurst v. Krinzman, 237 So. 2d 333 (Fla. 3d DCA 1970)
- Williams v. Dade Cnty., 237 So. 2d 776 (Fla. 3d DCA 1970)
- Jones v. Hoffman, 239 So. 2d 76 (Fla. 4th DCA 1970)