(92 So.) wealth, 86 Va. 682, 10 S. E. 420; Lewis v. State, 35 Ala. 380; Taylor v. State, 50 Ga. 79; State v. Williams, 121 N. C. 628, 28 S. E. 405; State v. Mehaffey, 132 N. C. 1062, 44 S. E. 107. In State v. Mehaffey, supra, in dealing with a similar state of facts, the Supreme Court of North Carolina said: was not weakened by cross-examination of counsel. Her evidence was in no way impeached. There is evidence of an immediate complaint made by her, and in other respects she is corroborated. This court has held that a conviction upon a charge of rape, which may be punished by death, may rest alone upon the uncorroborated evidence of the prosecutrix. Doyle v. State, 39 Fla. 155, "Whether he desisted for that reason, or be22 South. 272, 63 Am. St. Rep. 159. The de cause at his age he could not accomplish his tails of what occurred, as testified to by the purpose after so vigorous an opposition, or prosecutrix, are susceptible of no other ex- because he was physically unable to overcome planation than that when the assault was her opposition, or because he did not intend to committed the accused intended to have sex- have intercourse with her by force, was a matual intercourse with her either with or with- ter for the jury alone, and was properly left out her consent. That his efforts resulted in to them in connection with all the other evidence in the case. bringing into actual physical contact the It is true he debodies, and perhaps the sexual organs, of the having sexual intercourse with the girl. If he sisted-that is to say, he did not succeed in accused and the prosecutrix is expressly de- had, he would have been on trial for the capital clared by her, all of which, so she testifies, felony, and not for the intent. But his failure was accomplished by force and against her is not conclusive of the absence of intent, so will. That he desisted before committing that the court should not have charged the jury the higher offense does not conclusively as prayed, that he did not have such intent. show, as the court seems to hold contrary to the jury's verdict, that he did not intend when he committed the assault to accomplish that end. Whether he did or did not intend to do so is a question of fact, provable in this case, as in most cases of this character, by testimony of the prosecutrix and attendant circumstances only. If his purpose was only seduction, why did he persist in using force after her tears and outcries and struggles had showed that she would not consent. If he at any time during the asintent he was guilty, no matter what caused sault (which the defendant admits) had such him to abandon his purpose." There are many other authorities to the same effect. In the case under consideration the jury have found as a fact beyond a reasonable doubt the intent which is an essential element of the crime charged. There is in the evidence, as I read it, ample basis for this finding. I therefore dissent from the reversal of the judgment. (Supreme LINE et al. (84 Fla. 133) Court of Florida. July 13, 1922.) The accused may have desisted when he did because his passion had been satisfied. He may have been stricken with fear of discovery by some one approaching and entering the garage, where the crime was committed. He may, by sudden impulse, have realized the nature of his act and its possible conse quences to him, and desisted for that reason. He may never have intended to commit the crime of rape. But in view of all the circumstances the last-stated possible explanation may be the least probable. No living human being, except the defendant himself, SEABOARD AIR LINE RY. Co. v. HARTA may ever know what his intention really was, and he, perhaps, having had opportunity to reflect, would scarcely admit even to himself that he intended to commit a capital offense. But the jury, whose peculiar province it is under our system to determine this question of fact, after hearing all the evidence reached the conclusion beyond a reasonable doubt that he did commit the assault with intent to rape as charged. That he did not continue the assault indefinitely, or finally consummate the higher offense, is wholly immaterial. That he ceased his efforts and abandoned his object do not neutralize his former purpose or exculpate him, if at any time during the assault he intended to have sexual intercourse with the prosecutrix "by force and against her will," and the jury, upon proper instructions from the trial court, have passed upon that question. People v. Johnson, 131 Cal. 511, 63 Pac. 842; People v. Stewart, 97 Cal. 238, 32 Pac. 8; State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441; Glover v. Common (Syllabus by the Court.) Election of remedies-Where remedy sought is denied at opposing party's instance, there is no election which will bar proper remedy duty invoked. election of remedies, there must be two or more In order that parties shall be bound by an remedies available from which to elect. Where the remedy sought is not permitted, and is denied at the instance of the opposing party, there is no election that will bar a proper remedy duly invoked. Error to Circuit Court, Polk County; S. L. Holland, Referee. Action in ejectment by William A. Hartline and another, for the use of M. L. Vincent, against the Seaboard Air Line Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Knight, Thompson & Turner, of Tampa, I cannot be sustained in the absence of proof for plaintiff in error. of substantial performance by plaintiff or waiver thereof. Hilton S. Hampton, of Tampa, and Lee J. Clyatt, of Bartow, for defendants in error. WHITFIELD, J. Prior to this action in ejectment a suit in equity was brought against the company by M. L. Vincent, J. H. Vincent, Wm. A. Hartline, and Rosie C. Hartline, his wife, to impress a vendor's lien upon the land that without the owner's knowledge or consent had been appropriated and was occupied by the railroad company as a right of way. 3. Contracts 318-Violation of contract by one party releases other party therefrom. As a general rule, where a contract is violated by one of the parties thereto, the other party is thereby released from the contract. 4. Contracts 267, 322(1)—One in inexcusable default may not repudiate contract because of other's default; right to demand performance presumed waived where not insisted on. A party to a contract who is himself in inexcusable default of performance of an essential covenant may not repudiate the contract because of the default of the other party. But where it does not appear that performance of such covenant has been insisted upon, and nothing appearing to the contrary, it may be thereof has been waived. assumed that the right to demand performance Error to Circuit Court, Duval County; Daniel A. Simmons, Judge. The Hartlines had conveyed their interest in the land and the Vincents had taken the conveyance with the defendant company in adverse possession of the right of way; therefore neither the Hartlines nor the Vincents could maintain the suit in equity and the bill of complaint therein was dismissed on the defendant company's demurrer. Vincent v. Hines, 79 Fla. 564, 84 South. 614. As the complainants in the equity suit had invoked a remedy to which they were not enAction by J. N. C. Stockton, as receiver of titled, there was no election of remedies. In the Southern Naval Stores Company, against order that parties shall be bound by an elec-J. A. Carr and another, doing business untion of remedies there must be two or more der the firm name and style of Carr Bros. remedies available from which to elect. Judgment for plaintiff, and defendants bring Where the remedy sought is not permitted and is denied at the instance of the opposing party, there is no election that will bar a proper remedy duly invoked. See Malsby v. Gamble, 63 Fla. 508, 57 South. 687. As to the right to maintain this action, see Jacksonville, T. & K. W. Ry. Co. v. Adams, 27 Fla. 443, 9 South. 2; Coogler v. Rogers, 25 Fla. 853, 7 South. 391; Bacon v. Feigel, 76 Fla. 581, 80 South. 518; Gibbs v. McCoy, 70 Fla. 245, 70 South. 86. Affirmed. error. Reversed. Myers & Myers, of Tallahassee, and George C. Bedell, of Jacksonville, for plaintiffs in error. Martin H. Long, of Jacksonville, for defendant in error. WEST, J. This is an action of contract. Upon a trial of the issues there was a directed verdict for plaintiff. Judgment was entered on the verdict, and defendants took writ of error. The first and second assignments of error BROWNE, C. J., and TAYLOR, ELLIS, are abandoned. and WEST, JJ., concur. (84 Fla. 69) CARR et al. v. STOCKTON. (Supreme Court of Florida. July 1, 1922.) (Byllabus by the Court.) The third assignment as amended presents for review the ruling of the court sustaining the demurrer to the first plea to the amended declaration. The plaintiff sues as the receiver of the Southern Naval Stores Company. The contract sued upon contains a provision: That, in consideration of the release of Carr Bros., the defendants, from an existing con 1. Customs and usages 10-Contract Inter-tract between Southern Naval Stores Company preted in light of established custom or and defendants and from certain enumerated trade usage. An established custom or trade usage may annex incidents to a written contract, and a contract involving such a transaction should be interpreted in the light of such custom or usage. 2. Contracts 278(1)-Plaintiff cannot recover without proof of substantial performance or waiver. Recovery in a suit upon a contract requiring performance of certain acts by plaintiff obligations of said contract to be performed by said defendants, the "said Carr Bros. agree to ship turpentine and rosin to said company so that within eight (8) years from this date they shall ship sufficient naval stores to produce a commission of $6,500.00 on the basis of 22 per cent. commission on the amounts of the sales made by the said Company from naval stores so shipped. Said sum shall be paid in an average of $812.50 a year. At the end of any year should the commission on the products so shipped not equal the said sum of (92 So.) $812.50, the said Carr Bros. agree to pay the ucts to other factors who were able to handle difference in cash, and, should the commissions same and account to them for the proceeds of exceed the sum of $812.50 in any year, the ex-sales after deducting expenses, including the cess shall be credited on the amount of the usual commission of 22 per cent. on such commissions to be paid in the succeeding year. sales; that defendants have always been The said Carr Bros. may relieve themselves of this obligation at any time by paying the ready, willing, and able to pay said Southern amount of the commission herein agreed to be Naval Stores Company or the plaintiff any paid and remaining unpaid in cash." balance of the commissions due under said contract prior to the suspension of shipments The declaration alleges partial compliance to it at the request of said factor, but that only by defendants with this requirement of the plaintiff has demanded not only such balthe contract for the years ending September ance, but also the commissions for the re15, 1913, 1914, and 1915, since which time mainder of the eight-year period covered by defendants have wholly failed and refused to said contract and has refused to settle othmake any shipments of turpentine and rosinerwise; that because of the breach of the to said company or pay the yearly install-contract by said factor in refusing and failments required by the terms of the contracting to pay defendant's draft for the balance to be paid by them. of net proceeds of shipments made to it as [1] It is well settled that an established custom or trade usage respecting a commercial transaction may annex incidents to a written contract, and that a contract involving such a transaction should be interpreted in the light of such custom or usage. Williston on Contracts, vol. 2, p. 1262; Hutton v. Warren, 1 Meeson & Welsby, 466; South Deerfield Onion Storage Co. v. New York, N. H. & H. R. Co., 222 Mass. 535, 111 N. E. 367; Barrie v. Quimby, 206 Mass. 259, 92 N. E. 451; Pittsburgh, C., C. & St. L. Ry. Co. v. Knox, 177 Ind. 344, 98 N. E. 295. The plea, demurrer to which was sus-herein averred, defendants refused to protained, avers in substance that defendants ceed further with said contract. were producers of naval stores, and that the Southern Naval Stores Company was a naval stores factor in the city of Jacksonville; that, according to the customs of the naval stores factorage business, when not otherwise expressly agreed, shipments of naval stores to factors are to be sold by them on the market when received and account sales rendered to the shipper showing the price received, expenses of sale, including commissions, and net balance due the shipper, which balance is placed to his credit subject to his draft, and that the contract sued upon was made in reference to this custom; that prior to the commencement of the war in Europe in the year 1914 shipments of naval stores were made by defendants to the Southern Naval Stores Company as factor, and that the business between them was conducted in ac In Hutton v. Warren, supra, the court said: "It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed, and this has been done upon the principle of presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages." The plea avers and the demurrer admits the factor's failure and inability, because of financial difficulties, to make payments for shipments of naval stores received by it from defendants in accordance with the trade usage alleged after the date mentioned in the plea. cordance substantially with this custom; that, because of the unsettled conditions of the naval stores market resulting from the war, defendants were requested by the factor to make no further shipments until otherwise advised, whereupon by mutual understanding shipments under the contract were discontinued until the beginning of the year 1915, when shipments under the contract were resumed and were made and received by the factor in sufficient quantity to produce a net balance due defendants of $1,430.50, for which amount defendants drew a sight draft upon the factor, payment of which was refused because of its inability to pay same that no part of said amount was afterwards paid to defendants by said factor; that fail- The contract should not be construed, we ure to pay same was due to the financial think, as an unconditional undertaking by straits of said factor, which subsequently, in defendants in the alternative, that is to say, the month of August, 1915, on application of an agreement by them to pay the annual incertain of its stockholders, was placed in the stallments as stated of the total amount hands of a receiver and its business has ever agreed to be paid either in shipments of nasince been administered by such receiver, the val stores to the factor for sale in sufficient plaintiff; that, because of the failure of said quantities to yield the amount of the annual factor to pay over to defendants the pro-installments in commissions or in cash, but ceeds of sales made for them as had been rather, as contended by defendants, as an previously done with other shipments, de- agreement to pay such amount in shipments fendants were compelled to ship their prod- of naval stores in accordance with the terms of the contract or at the option of defendants in cash if they desired to do so. [2, 3] Upon this construction the factor's default in making payments for shipments received from defendants as agreed was such a breach upon its part as to release defendants from further performance. By this breach defendants were prevented from making payment to the factor in manner expressly provided for by the contract. Anvil Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814; Curtis v. Gibney, 59 Md. 131; Rappleye v. Racine Seeder Co., 79 Iowa, 220, 44 N. W. 363, 7 L. R. A. 139; Kinch v. Moadinger, 26 Misc. Rep. 778, 57 N. Y. Supp. 248; Otstott v. Merryman, 71 Fla. 352, 71 South. 278; Alachua Phosphate Co. v. Anglo-Continental Guano Works, 51 Fla. 143, 40 South. 71; Etheredge v. Barkley, 25 Fla. 814, 6 South. 861. [4] We do not overlook the principle that a party to a contract who is himself in inexcusable default of performance of an essential covenant may not repudiate the contract because of the default of the other party thereto. But this principle is not applicable here because it does not appear that the factor attempted to take any advantage of defendants' failure to pay in full any annual installments as it fell due for any year preceding the factor's breach, in which circumstances it will be assumed that the right to demand such performance was waived by it. What we have said results in the conclusion that the plea set up a good defense to the demand of the plaintiff except as to the amounts which defendants express a willingness to pay. There was error, therefore, in sustaining the demurrer to the plea, for which the judgment must be reversed. Reversed. BROWNE, C. J., and TAYLOR, WHITFIELD, and ELLIS, JJ., concur. (84 Fla. 120) YATES et al. v. WALKER et al. (Supreme Court of Florida. July 7, 1922.) Appeal from Circuit Court, Duval County; George Couper Gibbs, Judge. Action between Bessie G. Yates and husband and David S. Walker and wife and others. From a decree therein, the former appeal. Affirmed. Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge. Action between Peter Mendis and Frank L. Wing. From a decree therein, the former appeals. Affirmed. H. P. Baya and Wm. Hunter, both of Tampa, for appellant. Knight, Thompson & Turner and James F. Glen, all of Tampa, for appellee. fore been submitted to the court upon the PER CURIAM. This cause having heretotranscript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed. All concur. (84 Fla. 80) NEAL v. CLARENDON HOTEL CO. et al. Action between E. Virgil Neal and the Clarendon Hotel Company and another. From an order therein, the former appeals. Affirmed.. Landis, Fish & Hull, of De Land, for appellant. Fleming, Hamilton, Diver & Fleming, of Jacksonville, for appellees. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the order herein spective parties, and the record having been George C. Bedell, of Jacksonville, for appel- and briefs and argument of counsel for the relants. Marion B. Jennings, of Jacksonville, for ap- seen and inspected, and the court being now pellees. PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree aforesaid and argument of counsel for the respective advised of its judgment to be given in the premises, it seems to the court that there is no error in the said order. It is therefore considered, ordered, and adjudged by the court that the said order of the circuit court be and the same is hereby affirmed. (92 So.) (129 Miss. 671) MORRIMAC VENEER CO. v. McCALIP. (No. 22381.) (Supreme Court of Mississippi, Division B. June 26, 1922. Suggestion of Error Overruled July 10, 1922.) (Syllabus by the Court.) 1. Constitutional law 249-Venue 3State may provide different rules between citizens and corporations as to change of venue where not affecting any material liability without violating the federal Constitution. Chapter 149, Laws 1918 (Hemingway's Supp. 1921, § 486), providing for a change of venue to a resident citizen who is sued out of the county of his household and residence, and denying such a change to a corporation, does not violate the Fourteenth Amendment to the Constitution of the United States, as it does not affect any vital right, and is a mere matter of practice for the convenience of natural persons who are householders and residents of a county. The state may provide different rules as to venue, between citizens and corporations where it does not affect any material defense or liability. 2. Appeal and error 1068 (4)—Instruction that measure of damages is difference between contract price and market price of logs cut and delivered and amount plaintiff would have made for cutting timber left standing held not ground for reversal. It is not reversible error to give an instruction to a plaintiff in a suit for damages for breach of contract that the jury may find for the plaintiff, if the jury believe from the evidence the defendant breached its contract, the difference in the contract price and the market price for logs cut and delivered on the railroad, and also the amount plaintiff would have made for cutting timber left standing as a result of such breach, where the jury did not find anything as damages for the uncut timber even though the evidence may not show with sufficient certainty how much had been delivered and paid for, so as to make the amount due to be cut under a contract appear with reasonable certainty. Appeal from Circuit Court, Lawrence County; A. E. Weathersby, Judge. certain gum, maple, beach, sycamore, and poplar timber upon certain described lands, at the sum of $28 per thousand feet when cut and loaded on cars at Monticello, Miss., payment to be made twice each month, on the 1st and 15th, with the provision that the appellant should retain $4.40 per thousand feet to pay one Barnett for permitting said plaintiff to cut and remove the timber. The contract also provided for the sale of all ash timber on said lands at the sum of $30 per thousand feet f. o. b. cars Monticello, Miss., with $7 per thousand feet to be paid to Barnett for permitting the plaintiff to cut and remove said timber. The declaration alleged that the plaintiff entered upon said contract and cut and hauled to Monticello logs, some of which were delivered to defendant, and that the plaintiff had cut and loaded on the ramps of the railroad ready for inspection something more than one-half million feet of timber, but which the defendant refused to inspect and accept as provided for in the contract, and that the defendant breached its contract and notified the railroad company that it would not receive any logs loaded by the plaintiff for it or for any other person, and, further, that it was necessary after the breach of the said contract to sell the said timber to other persons; that the plaintiff sold 14,000 feet of said lumber to the E. L. Hendricks Lumber Company at $20 per thousand feet, entailing a loss of $8 per thousand feet, or $112, and was forced to sell to the Quaker Oats Company 500,000 feet of said timber at $22.50 per thousand feet, entailing a loss of $5.50 per thousand feet, totaling $2,750, making a total loss to the plaintiff of $2,862 on the logs thus cut and ready to be delivered to the defendant. It was further alleged that there was uncut at least 500,000 feet of said timber embraced in said contract, and that, by reason of the breach of said contract, the plaintiff was damaged as to this item in the sum of $14 per thousand feet, or a total of $7,000 for this item, and demanded judgment for $9,862, as total damages for said breach of contract. The defendant filed a motion for a change Suit by Floyd McCalip against the Morri- of venue, alleging that it was a resident citmac Veneer Company. Judgment in favor of the plaintiff, and the defendant appeals. Af-izen of the first judicial district of Hinds firmed. Fulton Thompson and R. H. & J. H. Thompson, all of Jackson, for appellant. Magee & Gibson, of Monticello, for appellee. ETHRIDGE, J. The appellee was plaintiff below, and sued the appellant for damages for a breach of contract involving the sale of certain timber to the appellant by the appellee. The contract of sale provided for a sale of 1,000,000 feet, more or less, of county, Miss., having its domicile and place of business within said district and county, but that it was a Mississippi corporation, and its only place of business and residence was in the first judicial district of Hinds county, and had been since the date of its incorporation, and that at no time had the defendant had an office in Lawrence county, Miss., or an officer or agent within said county of Lawrence, which motion was veri fied by its agent, which motion was by the court overruled, and exception taken thereto. The defendant thereupon pleaded the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 92 SO.-52 |