(156 La.) (100 So.) No. 24282. J. H. GARRISON & SON v. SHERILL "Time. We will agree to deliver these ties as fast as weather will permit us producing. "Inspection. To be made at time of loading unless arrangements are made different in future. "Payment.-Payment is to be made upon re(Supreme Court of Louisiana. April 30, 1924.) ceipt of B/L. Should at any time we should (Syllabus by Editorial Staff.) 1. Sales 418 (2)-Measure of damages for failure to deliver railroad ties sold stated. Damages recoverable for breach of contract to deliver railroad ties sold, where both parties are in default, are those contemplated when contract is made, and is the difference between contract price and market value at time and place for delivery. 2. Sales176(1)-Performance of sales contract cannot be demanded after unreasonable delay and on advancing market. While putting in default is a condition precedent to recovery of damages and profits, where violation of contract is passive, in view of Civ. Code, arts. 1911, 1912, 1933, a creditor cannot be permitted to demand performance of contract after unreasonable delay and in face of advancing market; such damages being speculative, and not contemplated when contract was made. 3. Sales 174-No damages for nonperformance where plaintiff himself in default. A party cannot claim damages for nonperformance of contract as to which he himself is in default. Appeal from Fifteenth Judicial District Court, Parish of Beauregard; Jerry Cline, Action by J. H. Garrison & Son against the S. W. Plauche, of Lake Charles, Ped C. Kay, of De Ridder, and S. W. Blount, of Nacogdoches, Tex. (S. W. Plauche, of Lake Charles, of counsel), for appellant. Borah, Himel, Bloch & Borah, of Franklin, for appellee. have out on the railroad, loading spurs or switches as many as 5,000 ties, and we were unable to secure cars for this loading, we would then expect you to pay us as much as 80 per cent. of the contract price, the remainder when loaded. We mean by this that we would be willing to hold all ties, say from 4 to 6 weeks, before exacting this advance. If this proposition suits you, you will please sign under the word accepted' below, which will constitute contract between us." On February 2, 1917, the Colfax Hardwood Lumber Company also made the following proposition to plaintiffs, which was accepted: "In addition to the order to which we have entered for you to-day for 25,000 white oak ties, if you will agree to give us until next fall, say October 1st, 1917, we will furnish you 20,000 to 40,000 ties on the same conditions as outlined in this order of this date." Plaintiffs chargé defendant company with breaches of these contracts, and sue for damages for loss of profits. They allege that only 5,687 No. 1 white oak ties were delivered to their firm between February 22, 1917, and May 31, 1917, and that no more deliv eries of ties were made under said contracts, although defendant company was urged and requested to do so from time to time. Plaintiff, however, did not put defendant company formally in default by written demand for compliance with these contracts until August 28, 1918, or until nearly 11 months after October 1, 1917, the final date stipulated for delivery of all ties under the agreements between the parties. Moreover, plaintiffs were themselves in default for failure to pay upon receipt of bill of lading, as required by the terms of the contract, for By Division B, composed of Justices DAW- 2,332 cypress ties and 493 No. 2 oak ties, KINS, LAND, and LECHE. LAND, J. The defendant company was formerly the Colfax Hardwood Lumber Company, and, under the latter name, entered into the following contract with plaintiffs, a commercial partnership, on February 2, 1917: "Garrison & Sons, Garrison, Tex.-Gentlemen: ('Quotations subject to change without notice. All agreements subject to strikes, accidents and other delays unavoidable or beyond our control.') "We offer as follows: 25,000 No. 1 white oak_ties 6x8x8 at 40 cents f. o. b. cars, points on L. R. & N. Ry. between Winnfield, Aloha, Campti, and Alexandria, La. which were delivered by defendant company, under agreement made subsequently to the contracts of February 2, 1917; said ties to be applied to, and accepted as deliveries under, the original contracts. The price prevailing on the market at the date defendant company was put in default, August 28, 1918, was 83 cents per tie, or in excess of 43 cents above the contract price. [1] We have repeatedly held that damages recoverable in such cases are those in the contemplation of the parties when the contract was made, and consist of the difference between the contract price and the market value at the time and place at which the goods were to be delivered. These ties had advanced in value from 42 cents to 68 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cents per tie on October 1, 1917, the date of delivery fixed in the contract. As it would be both unfair and inequitable to allow plaintiffs to select a remote date upon a rapidly rising market, as the basis of the damages claimed, the putting of defendant company in mora on August 28, 1918, was nugatory, and of no effect. Monumental Brewing Co. v. Southern Rice Milling Co. (La.) 99 South. 401 decided Feb. 18, 1924; Bonsor Co. v. Simon Rice Milling Co., 151 La. 1094, 92 South. 711; National Wholesale Grocery Co. v. Simon Rice Milling Co., 152 La. 2, 92 South. 713. Where the violation of the contract is passive, putting in default is a condition precedent to recovery of damages and profits. R. C. C. arts. 1912, 1933; Livingston v. Scully, 38 La. Ann. 781; Davis v. Glenn, 3 La. Ann. 444. Where there is a passive breach, the debtor, it is true, may be put in default at or after the time stipulated for the performance by the act of the creditor, when he formally demands that the contract be carried into effect. R. C. C. art. 1911; Godchaux v. Hyde, 126 La. 190, 52 South. 269. [2] However, the creditor cannot be permitted to demand the performance of the contract, after an unreasonable delay and in the face of an advancing market, as such damages are speculative, and were not in the contemplation of the parties at the time the contract was made. [3] Nor can a party claim damages for the nonperformance of a contract as to which he himself is in default. Silverman v. Caddo Gas Co., 127 La. 928, 54 South. 289; Sitman Expres 2. Criminal law 7201⁄2, 1171(1) slons by attorneys in arguments before jury stating personal opinions as to guilt are improper, but not necessarily reversible error. Expressions by attorneys, in their arguments before a jury, as to their personal opinion of guilt, are highly improper, though they do not necessarily constitute reversible error. 3. Criminal law 719(1)-Counsel in argument to jury should confine remarks to evidence and legitimate inferences. before a jury, counsel should confine their reIn the argument of a cause upon its merits marks to the evidence and the inferences which may be legitimately drawn therefrom. 4. Criminal law 938(1) - Rules regulating granting of new trials for newly discovered evidence not inflexible. The rules regulating the granting of new trials on the ground of newly discovered evidence are not inflexible and must, sometimes, bend to meet the ends of justice. 5. Criminal law 945(1)—New trial should be granted on discovery of new evidence which might have produced different results. Where the evidence is doubtful as to the material element of the crime for which a defendant is prosecuted, and counsel have used due diligence in the trial of the cause and the preparation of the defense, and after the trial evidence is discovered which is material and had it been produced at the trial would probably have produced a different result, a new trial should be granted on motion. Error to Criminal Court of Record, Duval County; James M. Peeler, Judge. J. G. Tyson was convicted of having carnal intercourse with an unmarried female & Burton v. Lindsey, 123 La. 53, 48 South. of previous chaste character under 18 years 646; Bryan v. Holland, 137 La. 512, 68 of age, and he brings error. Reversed, and new trial ordered. South. 845. The judgment of the lower court rejected the demands and dismissed the suit of plaintiffs. We find no error in the judgment appealed from. Judgment affirmed. TYSON V. STATE. (Supreme Court of Florida, Division A. (Syllabus by the Court.) 1. Criminal law 699, 1171(3)-Latitude allowed counsel on merits of case In arguments before jury; statements in argument before Jury neither logical nor germane to subject not in themselves reversible error. Edgar W. Waybright, of Jacksonville, for plaintiff in error. Rivers Buford, Atty. Gen., and M. C. McIntosh, Asst. Atty. Gen., for the State. ELLIS, J. The plaintiff in error was convicted of the offense of having carnal intercourse with an unmarried female of previous chaste character under the age of 18 years, in violation of chapter 8596, Laws of Florida, Acts of 1921, and brings error. Counsel for the plaintiff in error contends that a new trial should have been granted because during the argument before the jury the county solicitor said: "This case is not as serious to the defendant as it is to the little girl, because by a single stroke of the pen the Governor could grant a pardon." Considerable latitude is allowed counsel in their arguments upon the merits of a case before a jury, and statements in such arguments The court upon counsel's objection "“inthat are neither logical nor germane to the sub-structed the county solicitor that he had ject do not of themselves constitute reversible nothing to do with the question of pardon." The county solicitor then said: error. (100 So.) "I cannot discuss a pardon to you, gentlemen, but this case is not as serious to the defendant as counsel for the defendant would have the jury believe. I have not objected during the argument of counsel for the defendant, and it is the truth that hurts." counsel to confine their remarks to the evidence and the inferences which an imagination, however rich it may be, draws therefrom. While we are unable to perceive the relevancy of the statement that the "case was [1] The record shows that defendant's not as serious to the defendant" as his councounsel objected to the remarks of the coun- sel desired it to appear, nor what possible ty solicitor, "which objection was overruled bearing the county solicitor's patience durand exception noted." This incident is madeing the argument could have upon the questhe basis of the ninth assignment of error. tion of defendant's guilt we cannot say that There was no harmful error in this incident. the court's refusal to sustain the objection The statement of the county attorney, while was an abuse of discretion. irrelevant, and its correctness somewhat doubtful, at least subject to dispute, cannot be said to constitute an abuse of counsel's privilege in going far afield in what is called the argument. Besides, the court admonished counsel that the matter of a pardon was for another tribunal, which seems to have been about all the court could do under the circumstances. Juries are composed of men of sound judgment and intelligence. At least so the law requires, and it is not to be presumed that they are led astray to wrongful verdicts by the impassioned eloquence and illogical pathos of counsel. The matter is controllable by the trial court in its discretion. See Carter v. State, 68 Fla. 143, 66 South. 1000; Wilson v. State, 47 Fla. 118, 36 South. 580; Sylvester v. State, 46 Fla. 166, 35 South. 142; Putnal v. State, 56 Fla. 86, 47 South. 864. [2] It is generally understood that the expression by counsel in argument before the jury of personal opinion of guilt is not only bad form, but highly improper, as counsel is not a witness, nor under oath to speak the truth, nor called as an expert to give his opinion. Adams v. State, 54 Fla. 1, 45 South. 494. [3] Any unfair advantage taken by counsel for the state is equally reprehensible; but it is extremely difficult to definitely state at what point the line should be drawn between what is doubtfully permissible and what is clearly wrong. Such matters probably should be left to the sense of fairness of the state's counsel and the trial court's discretion. What sometimes may seem to be an unfair advantage may to the court and jury be unnoticed, and appears serious to counsel only because of the assumed importance of the other's opinion when speaking in his capacity of state attorney. The better practice, as this court has often indicated, is for [4, 5] The tenth assignment of error, which rests upon the court's refusal to grant a new trial upon the ground of newly discovered evidence, we think is well taken. The evidence discovered was material to the issues both as to the chastity or previous good character of the prosecutrix and her age. It was not cumulative, and should produce upon another trial a different result, if true. The defendant and his counsel used due diligence and discovered the evidence after the trial. See Herndon v. State, 73 Fla. 451, 74 South. 511; Dixon v. State, 77 Fla. 143, 80 South. 741; Howard v. State, 36 Fla. 21, 17 South. 84; Adams v. State, 55 Fla. 1, 46 South. 152. In the last-cited case the court, speaking through Mr. Justice Hocker, expressed the view that, while the general rules regulating the granting of new trials on the ground of newly discovered evidence should be adhered to, they are not inflexible and must sometimes bend in order to meet the ends of justice. And in this case the court was of the opinion that in view of the unsatisfactory character of the evidence upon which the verdict was rendered and the offer of newly discovered evidence to throw light upon the question of guilt, the motion for a new trial should have been granted. That language is of peculiar applicability to this case. The evidence is unsatisfactory both as to the age of the prosecutrix and her previous chaste character, which the newly discovered evidence, if true, will completely refute. In such case the ends of justice require that a new trial be granted. The judgment is reversed and a new trial ordered. TAYLOR, C. J., and BROWNE, J., concur. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur in the opinion. STATE ex rel. BUFORD, Atty. Gen., v. FEARNSIDE et al. WHITFIELD, J. The Attorney General filed in the circuit court an information in the nature of quo warranto in which it is alleged (Supreme Court of Florida. April 5, 1924.) "that Special road and bridge district No. 6 (Syllabus by the Court.) 1. Constitutional law 70(1)-Legislative determination as to whether notice of application for local or special legislation has been given is conclusive. The courts have no power to inquire whether the notice of application to the Legislature for local or special legislation, required by section 21 of article 3 of the Constitution, and by the legislation thereunder defining the method of publishing and proving the publication of such notice (Act May 31, 1887, c. 3708, of the Statutes, and sections 78, 79, Revised General Statutes of 1920) has been given. To ascertain and decide whether the required notice has been given is exclusively a legislative function and duty, and the passage of a special or local act is a legislative judgment that proper notice has been duly published, and that the legal evidence thereof was "established in the Legislature" before the bill was passed, and the courts are concluded by such judgment. 2. Highways 165-Legislature may take from county commissioners their powers of supervision and control of public roads and bridges. There is nothing in our Constitution that prohibits the Legislature from enacting a statute taking away from the boards of county commissioners, not only a part, but the whole, of their powers of supervision and control of public roads and bridges, and lodging such powers elsewhere, since the control of all general public highways is vested in the state absolutely without any constitutional limitations or restrictions. 3. Statutes 97(2), 123(4)-Statute relating to special road and bridge district in certain county held not invalid as a special and local law; statute relative to special road and bridge district not violative of provision requiring act to deal with one subject to be expressed In title. Chapter 9582, Special Acts of 1923, relating to a special road and bridge district in Putnam county, does not violate section 16, or sections 20 and 21, art. 3, of the Constitution. Browne and Ellis, JJ., dissenting. of Putnam county, Florida, was duly created and constituted under the provisions of chapter 13, title 9, of division 1 of the Revised General Statutes of Florida, by order of the board of county commissioners of Putnam county, Florida, duly passed at a regular meeting of said board on May 7, 1923, and said district is still in effect, and has never been abolished; that a special election duly held in the territory embraced in said district, on May 1, 1923, was carried in favor of creating said district, and a bond issue of $700,000 was voted at said special election against said district, to be issued and sold to pay for the construction of the roads and bridges set out in the petition for, and notice of, said special election; that after said district was created and constituted, it became, was, and still is the duty of the board of county commissioners of Putnam county, Florida, as provided by law, to provide, by resolution of said board, for a sinking fund for the payment of the principal of said bonds at the maturity of same, and proceed to issue and sell special road and bridge bonds of said district for the amount provided for by said special election, to have proper plans and specifications prepared for the roads and bridges voted in said special election, to award contracts for the construction of such roads and bridges as provided by law, and to do all things provided by law in carrying out the construction work as voted in said special election; but said board of county commissioners have not taken any further steps in said matters after creating and constituting said special road and bridge district, designating the name and number thereof and declaring and publishing the boundaries thereof, because the powers of said board over same have been usurped by respondents in this, that a bill was introduced and passed in the Florida Legislature on May 15 at the 1923 Session of the Florida Legislature entitled 'An Act to create certain territory in Putnam county, Florida, into a special road and bridge district; to legalize and validate an election and the result as shown by the canvass of the returns thereof, held in said territory, constituting the said territory into a special road and bridge district; and to authorize, legalize, and validate the building and construction of certain roads and bridges named therein, and for the issuance of bonds to pay therefor; and the appointment of a Error to Circuit Court, Putnam County; board of bond trustees, and to invest said trusA. V. Long, Judge. Quo warranto by the State on the relation of Rivers Buford, Attorney General, against F. J. Fearnside and others. Judgment for respondents, and relator brings error. Affirmed. Rivers Buford, Atty. Gen., and Hilburn & Merryday and A. H. Odom, all of Palatka, for plaintiff in error. J. V. Walton and W. P. Dineen, both of Palatka, for defendants in error. tees with certain powers and duties; and to carry into effect the object and purposes of said election; and to provide for the collection, for interest and sinking fund for said bonds;' use, and control of funds within said territory that said bill, if same is constitutional, became a law without the approval of the Governor; that said bill created a board of bond trustees said special road and bridge district No. 6 of to be composed of three (3) members for the Putnam county, Florida, to be appointed by the Governor of the state of Florida, to hold office until the first Tuesday in July, 1926, and (100 So.) "(2) Said act violates section 20 of article 3 of the Constitution of the state of Florida, in that said alleged act is a special or local law, and is, by its expressed provisions, designed and limited to operate and be of force only in a portion of Putnam county, Florida, and (a) regulates the jurisdiction and duties of the board of county commissioners of Putnam county, Florida; and (b) regulates the jurisdiction and duties of the respondents as board of bond trustees for special road and bridge district No. 6 of Putnam county, Florida; and (c) regulates the assessment and collection of taxes for state and county purposes; and (d) provides for opening and conducting elections for county officers; and (e) regulates the fees of board of bond trustees of special road and bridge district No. 6 of Putnam county, Florida. "(3) Said act violates section 16 of article 3 of the Constitution of the state of Florida in that said alleged act embraces more than one subject and matter properly connected therewith, to wit: (a) The validation of the special election held May 1, 1923, and proceedings taken in connection therewith by the board of county commissioners of Putnam county, Florida, in creating said special road and bridge district No. 6 of Putnam county, Florida; (b) creating administration officers in Putnam county, Florida, theretofore unknown to the law, and prescribing their jurisdiction, functions, and powers; (c) creating said special road and bridge district No. 6 of Putnam county, Florida; (d) assessment and collection of taxes; (e) payment and discharge of bonded indebtedness; (f) regulating the jurisdiction and duties of the board of county commissioners of Putnam county, Florida. until their successors are elected, as provided act itself that the required sixty days' notice by said bill; that upon the appointment and of its introduction in the Legislature was not, qualification of said board of bond trustees in and could not have been, given prior to its inaccordance with the provisions of said act, troduction in the Legislature. said board of bond trustees were by said act authorized and empowered to issue and sell the bonds voted against said district in the sum of seven hundred thousand ($700,000) dollars; that said act provided for said bonds to be signed by the chairman of said board of bond trustees and to bear the imprint of the corporate seal of said board of bond trustees, and attested by the clerk of the circuit court of Putnam county, Florida; said act further provides that said board of bond trustees should have the entire control, supervision, care, construction, and maintenance of the roads and bridges to be constructed in said district, out of the funds derived from the sale of said bonds; said board of bond trustees are by said act further authorized and empowered to advertise for bids for the construction of said roads and bridges, and to let contracts therefor to the lowest responsible bidder, or to construct said roads and bridges, and in the construction thereof, said board of bond trustees are empowered, by said act, to purchase and provide for all necessary equipments for such work; that said board of bond trustees are further authorized to employ road engineers, attorneys, and legal counsel in exercising their powers and authority under said act; that, pursuant to the act aforesaid, the Governor of the state of Florida on the 8th day of June, A. D. 1923, named, nominated, and appointed F. J. Fearnside, H. A. Johnson, and S. S. Browning, all of Putnam county, Florida, respondents herein, to be the board of bond trustees of said special road and bridge district No. 6, of Putnam county, Florida; that thereafter, and prior to the filing of this information, said F. J. Fearnside, H. A. Johnson, and S. S. Browning filed their bonds and otherwise qualified as such trustees, in accordance with the provisions of said act, and are now acting in said authority, and are exercising, enjoying, using, and performing the powers, franchises, prerogatives, functions, and jurisdiction attempted to be conferred upon them by virtue of the provisions of said act; that said respondents are using, enjoying, exercising, and performing, all without warrant or authority of law, and in violation of the Constitution of the state of Florida, the franchises, functions, powers, and jurisdiction of the board of county commissioners of Putnam county, Florida, in and over said special road and bridge district No. 6 of Putnam county, Florida, and that the said respondents, and each and every of them, since their said appointment and qualification have usurped, and still do usurp, within the state of Florida, and within the jurisdiction of this court, upon the state aforesaid, and the people of the state aforesaid, to their great damage and prejudice, the franchises, functions, jurisdictions, and powers aforesaid, without authority of law and in violation of the Constitution of the state of Florida, in that said act is unconstitutional and void for the following reasons: "(1) Said alleged act violates the provisions of section 21, of article 3, of the Constitution of the state of Florida, in that it is a special or local law, and it affirmatively appears from the 100 SO.-17 "(4) Said act violates section 16 of article 3 of the Constitution of the state of Florida in that the following subjects of said act are not expressed in the title, viz.: (a) Assessment and collection of taxes, and (b) payment and discharge of bonded indebtedness. "(5) Because it attempts to create officers not authorized by, or contemplated by, the Constitution of the state of Florida. "(6) Because it seeks to deprive the county commissioners of Putnam county, Florida, of power, functions, and jurisdictions vested in it by necessary implication arising from the provisions of the Constitution of the state of Florida. "(7) Said alleged act attempts to vest in other officers powers, duties, functions, and jurisdiction plainly intended by the Constitution of the state of Florida to be exercised only by a board of county commissioners." The prayer is that "the said F. J. Fearnside, H. A. Johnson, and S. S. Browning, in this behalf, to answer to the state of Florida by what warrant of authority they, and each of them, claim to use, exercise, enjoy, and perform the franchises. functions, jurisdiction, and powers of the board of county commissioners of Putnam county, Florida, aforesaid." |