Variance Between Pleading And Proof

64 Florida cases classified under this topic · sorted by citation count · see the citation graph · browse and sort

• Yates v. Ball
  132 Fla. 132· Fla.· 1937-10-13 ·cited 282×
  Yates, holder of second mortgage bonds, sued Ball on an oral agreement from June 1928 where Ball promised to form a corporation to acquire property securing the bonds, pay interest, and protect the bonds against prior liens, while Yates promised to refrain from foreclosure and co
• United States v. Crosby
  294 F.2d 928· 2d Cir.· 1961-08-22 ·cited 188×
  The court held that while the shares should have been registered, there was insufficient proof to infer wilfulness and criminal intent for the broker defendants on the unregistered securities counts. However, the evidence against the 'management' defendants was sufficient.
• Ange v. State
  98 Fla. 538· Fla.· 1929-09-30 ·cited 124×
  Charlie H. Ange was indicted for criminal defamation under Florida law, but the Florida Supreme Court reversed and remanded because there was a material variance between the indictment's allegations and the proof presented at trial, and because the County Judge's testimony regard
• Arky v. Bowmar Instrument Corp.
  537 So. 2d 561· Fla.· 1988-12-22 ·cited 94×
  The Florida Supreme Court held that when a plaintiff or counterclaimant fails to plead claims with sufficient particularity, it cannot recover on theories not adequately alleged in the pleadings, even if evidence of those theories is introduced at trial. The court reversed the Th
• United States v. Valenti
  134 F.2d 362· 2d Cir.· 1943-03-11 ·cited 80×
  The court held that the circumstantial evidence was sufficient to support the jury's finding of a single conspiracy and that the admission of the agent's statement was not reversible error.
• United States v. Perlstein
  126 F.2d 789· 3d Cir.· 1942-02-20 ·cited 76×
  The court held that an indictment for conspiracy to obstruct justice requires an allegation and proof that a proceeding was actually pending and that the defendants knew of it.
• Burdine's, Inc. v. Enoch Mood McConnell, Jr.
  146 Fla. 512· Fla.· 1941-04-01 ·cited 73×
  A three-year-old child was injured on an escalator in Burdine's department store and recovered $1,000 in damages. The Florida Supreme Court affirmed the judgment, holding that store operators owe a heightened duty of care to child invitees and the jury properly found negligence w
• Wiggins v. Solon G. Wilson and Clarence A. Boswell
  55 Fla. 346· Fla.· 1908-01-01 ·cited 73×
  Wilson & Boswell, real estate brokers, sued Mary A. Stokes for commissions allegedly owed for procuring a purchaser for her lands. The Florida Supreme Court reversed the lower court's judgment for the brokers, holding that they failed to produce a purchaser ready and willing to b
• W. B. Harbeson Lumber Co. v. Duncan L. Anderson and Anna Anderson
  102 Fla. 731· Fla.· 1931-08-06 ·cited 69×
  The Florida Supreme Court reversed a personal injury wrongful death verdict against a lumber company operator whose logging machine overturned and killed an employee. The court held that the plaintiffs failed to prove the negligence alleged in their declaration and that the damag
• United States v. Bonacorsa
  528 F.2d 1218· 2d Cir.· 1976-01-09 ·cited 58×
  The court held that the evidence was sufficient to support the conviction for perjury and obstruction of justice, and that the defendant received a fair trial.
• United States v. Miller
  688 F.2d 652· 9th Cir.· 1982-09-21 ·cited 49×
  The court held that a theft victim's search of a suspect's property, even with prior police contact and consent, was not a government search subject to Fourth Amendment requirements because the victim acted on his own initiative to recover his property and gained access via conse
• Stephens v. State
  92 Fla. 43· Fla.· 1926-06-26 ·cited 46×
  M. Y. Stephens was convicted of robbery and challenged the sufficiency of evidence regarding the description of stolen property. The Florida Supreme Court affirmed the conviction, holding that the failure to prove the specific composition of money taken (paper bills and silver co
• Edgar v. Maude Milling Bacon
  97 Fla. 679· Fla.· 1929-05-01 ·cited 39×
  A married woman and her husband sued to recover $5,000 paid as a deposit on a real estate contract that the seller allegedly refused to perform. The Florida Supreme Court reversed the judgment, holding that the trial court erred by allowing the married woman to recover money paid
• Clark v. United Grocery Co.
  69 Fla. 624· Fla.· 1915-05-18 ·cited 37×
  The Florida Supreme Court affirmed a judgment for the United Grocery Company against W. T. Clark on promissory notes endorsed by Clark. The court held that Clark's endorsement constituted a valid contract of guaranty, that the endorser's liability was not relieved by informal pay
• United States v. Switzer
  252 F.2d 139· 2d Cir.· 1958-01-28 ·cited 34×
  The court held that the indictment was not defective, the government established a prima facie case, and the trial court did not err in its rulings or instructions, affirming the convictions.
• United States v. Anderson
  552 F.2d 1296· 8th Cir.· 1977-04-04 ·cited 33×
  The court held that the agents' observation of stolen goods through a basement window was permissible under the plain view doctrine, and the defendant could be convicted of conspiracy to possess stolen goods even if he participated in the theft.
• Halie v. Wickersham
  103 Fla. 254· Fla.· 1931-10-23 ·cited 32×
  A plaintiff sued to enforce an alleged contract for the sale of Alabama real property, but the trial court directed a verdict for the defendants. The Florida Supreme Court affirmed, holding that the contract was conditional on the buyer's satisfaction with title, not an absolute
• Withers v. Sandlin
  36 Fla. 619· Fla.· 1895-06-01 ·cited 32×
  Withers, as administrator of E.J. Baker's estate, appealed a judgment against him for $2,000 on an assigned account claim. The Florida Supreme Court reversed and remanded for a new trial, finding the verdict excessive and unsupported by evidence, while holding that the assignee (
• Silas E. Chambers v. Nottebaum
  96 So. 2d 716· Fla. 3d DCA· 1957-08-15 ·cited 30×
  A patient sued his surgeon for trespass to the person after the surgeon administered a spinal anesthetic contrary to the patient's express instructions, resulting in partial leg paralysis. The court affirmed a jury verdict for the patient, establishing that a surgeon cannot devia
• Winfield v. Truitt
  71 Fla. 38· Fla.· 1916-01-22 ·cited 30×
  The Florida Supreme Court affirmed a judgment against three individuals sued as co-partners of Winfield Packing Company for breach of contract and fraud relating to the sale and shipment of oranges. The defendants, who were stockholders of a corporation that failed to comply with
• Lee v. Patten
  34 Fla. 149· Fla.· 1894-06-01 ·cited 30×
  Edmund Lee appeals a decree ordering him to convey land to George Patten, holding that Lee holds legal title in trust for Patten as successor to Robert Gamble's equitable interest. The court affirmed, finding that Lee fraudulently entered the land in his own name using Gamble's m
• Mansfield v. Brigham
  91 Fla. 109· Fla.· 1926-01-23 ·cited 28×
  Eva G. Brigham sued J.H. Mansfield for negligent operation of a jitney bus that caused her injuries in a collision. The Florida Supreme Court reversed the judgment because the trial court improperly admitted evidence of lost earnings that was not alleged in the original declarati
• W. Coast Fruit Co. v. Hackney
  98 Fla. 382· Fla.· 1929-08-01 ·cited 27×
  West Coast Fruit Company sued W. L. Hackney for breach of a contract to sell a citrus crop, but the trial court refused to allow plaintiff to take a non-suit after discovering a variance between the pleading and proof regarding whether the contract covered all fruit or only merch
• Roberts v. Seaboard Sur. Co.
  158 Fla. 686· Fla.· 1947-04-01 ·cited 25×
  This case concerns whether a default judgment against Seaboard Surety Company was properly entered when the underlying declaration named it as a joint defendant alongside Southeastern Construction Company, but the bill of particulars (made part of the declaration) showed an accou
• Pendarvis v. Pfeifer
  132 Fla. 724· Fla.· 1938-06-10 ·cited 24×
  A school bus driver permitted an eight-year-old child to alight from the bus on the opposite side of the highway from his home while a car was approaching, resulting in the child being struck. The Florida Supreme Court affirmed a jury verdict for $7,000 against the bus driver, ho
• Paritem Singh Poonian v. United States
  294 F.2d 74· 9th Cir.· 1961-08-24 ·cited 22×
  The majority opinion reversed a conviction for making false statements to the Treasury Department, finding a fatal variance between the indictment and the proof regarding the ownership of the income reported.
• Fla. Fire & Cas. Ins. Co. v. Hart
  73 Fla. 970· Fla.· 1917-05-04 ·cited 22×
  Florida Fire & Casualty Insurance Company appeals a jury verdict awarding Gerald Hart damages for wrongful discharge from his position as secretary. The Supreme Court reversed, holding that the evidence did not support the plaintiff's claim that his employment as secretary was gu
• Coons v. Pritchard
  69 Fla. 362· Fla.· 1915-03-30 ·cited 22×
  A fifteen-year-old employee of Vulcan Iron Works was injured while operating a defective electric drill machine when a wrench he was using to control a loose belt slipped, throwing his arm between the belt and pulley. The court held that an employer owes a heightened duty to inst
• Walter v. Parry
  51 Fla. 344· Fla.· 1906-01-01 ·cited 22×
  In this deceit action, the Florida Supreme Court reversed a jury verdict for the plaintiff because the trial court instructed the jury on a theory of fraudulent misrepresentation not alleged in the complaint. The court held that jury instructions must be confined to the issues ma
• United States v. Goldsmith
  483 F.2d 441· 5th Cir.· 1973-08-20 ·cited 20×
  The court held that the admission of prior bad acts evidence with limiting instructions, claims of ineffective assistance of counsel, improper discovery denial, and variance between pleading and proof were insufficient to warrant reversal.
• Crowell v. State
  238 So. 2d 690· Fla. 3d DCA· 1970-08-25 ·cited 20×
  The court held that allowing the state to amend the bill of particulars to conform to proof regarding the date of the offense, after evidence was presented, prejudiced the defendant's defense.
• United States v. Stephen Bros. Line
  384 F.2d 118· 5th Cir.· 1967-09-27 ·cited 20×
  The court held that the carrier's foreign commerce operations constituted common carriage, and the trial court erred in dismissing the count based on a variance between pleading and proof without allowing amendment. The court affirmed the dismissal of the domestic-interterritoria
• J. W. McWilliams Co. v. Travers
  96 Fla. 203· Fla.· 1928-07-11 ·cited 20×
  J. W. McWilliams Company sued Julia A. Travers, Susie Linebaugh, and Joseph Frazier as executors of Edward Marion Hendry's estate on a promissory note. The central issue was whether the executors could sue on a note payable to them individually while suing in their representative
• Louisville & Nashville R.R. Co. v. Guyton
  47 Fla. 188· Fla.· 1904-01-01 ·cited 20×
  The Florida Supreme Court reversed a jury verdict for an injured railroad passenger because the trial court instructed the jury to find liability based on theories of negligence (sudden starting of train without warning) that were not alleged in the plaintiff's complaint. The cou
• R. A. v. State
  400 So. 2d 1059· Fla. 3d DCA· 1981-07-21 ·cited 18×
  A juvenile was adjudicated delinquent for unlawfully entering a school building with intent to commit theft. The court affirmed the delinquency adjudication, rejecting arguments that the state failed to establish ownership of the building, its location, or the appellant's intent
• Amalgamated Meat Cutters & Butcher Workmen OF N. Am., AFL-CIO v. Nat'l Labor Relations Bd.
  663 F.2d 223· D.C. Cir.· 1980-12-31 ·cited 18×
  The court held that Clinton Foods did not receive adequate notice of the charge that it failed to bargain with the unions over the effects of closing the store, and therefore the Board's order based on this theory could not be enforced.
• City OF Palatka v. Woods
  78 So. 2d 562· Fla.· 1955-03-04 ·cited 18×
  The Florida Supreme Court affirmed a judgment against the City of Palatka for negligence in maintaining a dangerous sidewalk. The Court held that where a pedestrian had no knowledge of a defective sidewalk condition, the question of whether the plaintiff's failure to discover the
• Jones v. Pinellas Cnty.
  81 Fla. 613· Fla.· 1921-04-25 ·cited 18×
  Jones sued Pinellas County for payment of $7,628.75 for work and materials supplied under a jail construction contract that the county cancelled, alleging the contract was illegal under Florida law. The Florida Supreme Court affirmed judgment for the county, holding that although
• Wilson v. Phœbe Fridenberg
  22 Fla. 114· Fla.· 1886-01-01 ·cited 18×
  In this appeal, the Florida Supreme Court held that an executor's husband who executes a bond and mortgage as a representative of an estate is personally liable on those instruments when they contain unambiguous personal covenants, despite his fiduciary capacity. The court also r
• Arky v. Bowmar Instrument Corp.
  527 So. 2d 211· Fla. 3d DCA· 1987-12-08 ·cited 17×
  A law firm appealed a jury verdict awarding damages to a client in a legal malpractice counterclaim, arguing the verdict was based on a theory of negligence never properly pleaded. The court reversed and remanded, holding that although the counterclaim failed to adequately plead
• United States v. Costello
  381 F.2d 698· 2d Cir.· 1967-07-17 ·cited 17×
  The court affirmed the conviction, finding no error in the search and seizure, variance between pleading and proof, or venue.
• Merchs. & Mechanics Bank v. Sample
  98 Fla. 759· Fla.· 1929-10-23 ·cited 15×
  In this case involving a joint and several note, the Florida Supreme Court held that where a creditor obtains a judgment against only one of multiple joint obligors, that judgment—though erroneous—does not deprive the court of jurisdiction over co-obligors whose pleas remain undi
• Gustav Muller, Jr. v. Gables Racing Ass'n, Inc.
  142 Fla. 834· Fla.· 1940-01-26 ·cited 9×
  The Florida Supreme Court reversed a decree dismissing an administrator's bill to enforce a contract whereby Gustav Muller agreed to serve as a director of Gables Racing Association in exchange for 250 shares of stock. The court held that the plaintiff met his burden of proving t
• United States v. Johnson
  576 F.2d 1331· 8th Cir.· 1978-06-16 ·cited 8×
  A variance between the date alleged in an information and the date proven at trial is not fatal if the act occurred within the statute of limitations and the defendant was not prejudiced.
• Darrel Paul Giraud v. United States
  348 F.2d 820· 9th Cir.· 1965-07-26 ·cited 8×
  The court held that an indictment charging a defendant as a principal is sufficient to support a conviction for aiding and abetting, even if aiding and abetting is not explicitly pleaded. However, convictions for taking mail from the post office require proof that the mail was in
• Jacksonville v. Galvin
  29 Fla. 636· Fla.· 1892-01-01 ·cited 8×
  A railway employee sued for injuries sustained while coupling railway cars negligently loaded with iron that projected over the car's end. The Florida Supreme Court reversed the jury verdict, holding that coupling cars with projecting cargo falls within the ordinary risks of a br
• Barnard-Curtiss Co. v. Maehl
  117 F.2d 7· 9th Cir.· 1941-01-04 ·cited 6×
  The court held that the trial court did not err in denying motions to join a third-party defendant and refer the case to a special master, and that substantial evidence supported the jury's verdict.
• Rallo v. State
  726 So. 2d 839· Fla. 2d DCA· 1999-02-05 ·cited 5×
  The court held that the conviction for count V must be reversed because the evidence did not conform to the allegations, and the appellant was improperly sentenced as a violent career criminal as the prior qualifying offense occurred more than five years before the current offens
• Fla. Power & Light Co. v. Emp'rs' Liab. Assurance Corp.
  109 Fla. 81· Fla.· 1933-03-04 ·cited 5×
  This case involves a dispute over an insurance claim where Florida Power & Light (FP&L) sued Employers' Liability Assurance Corporation (ELAC) for $2,500. The lower court found in favor of FP&L, but the appellate court reversed, finding the declaration insufficient and that an ac
• McCOY v. Fleming
  160 F.2d 4· 5th Cir.· 1947-02-26 ·cited 4×
  The court held that the defendant's failure to prove he took practicable precautions against violations meant treble damages were permissible, and the variance claim was waived.