Opinion
April 5, 1949. On Rehearing August 2, 1949. Rehearing Denied October 5, 1949.
Appeal from Circuit Court, Palm Beach County; Joseph S. White, Judge.
Wideman, Caldwell, Pacetti Robinson and Manley P. Caldwell, all of West Palm Beach, and J.H. Mercer, of Miami, for appellant.
Patterson Lloyd and Linwood Cabot, all of Fort Lauderdale, for appellee.
Suit by Frederick C. Peters against W.N. Thompson to foreclose a chattel mortgage, in which defendant filed a counterclaim on a contract for excavating. From a decree consonant with a special master's report, plaintiff appeals.
Reversed.
The principal question presented for our determination hinges upon a consideration of the evidence. The Master made his findings of fact with reference to the indebtedness due from each litigant to the other and his recommendation concerning an appropriate final decree. His report was confirmed by the Circuit Judge who entered a final decree consonant therewith. Our inspection of the transcript convinces us that there was substantial evidence before the Special Master which we believe sustains his findings and the final decree of the Chancellor. Moreover, the appellant has failed to persuade us that either the recommendation of the Master or the final decree consequent thereupon was clearly erroneous. See Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So.2d 136; City of Miami et al. v. Huttoe, Fla., 38 So.2d 819, filed this Term of Court and not yet reported in State report; Nahmod v. Nelson, 147 Fla. 564, 3 So.2d 162.
We are of the opinion that the position of appellant to the effect that the Chancellor abused his sound judicial discretion when he denied an application on the part of plaintiff below to amend his reply to the defendant's counterclaim, which application was made for the first time at final hearing, is not well taken.
Although the delay in filing the application for leave to amend was deserving of serious consideration, it is not the entire basis for our conclusion that the Chancellor did not abuse his discretion. An examination of the proposed "further amendment to plaintiff's reply to defendant's counterclaim" discloses the fact that said amendment fails to establish an enforceable claim of rent for the use of the bulldozer. It is alleged "the defendant borrowed from the plaintiff and the plaintiff loaned to the defendant a certain bulldozer * * *". With this "borrowing" and "loaning" as a predicate, the plaintiff concludes that a liability on the part of the defendant to the plaintiff for the reasonable value of the use of such bulldozer was thereby created. We do not find that the words "borrow" and "loan" connote, or indicate there should be, payment for the use of the chattel which is the subject matter of the loan. Kent defines "loan" as "the bailment of an article for a certain time to be used by the borrower without paying for the use". Booth v. Terrell, 16 Ga. 20, 25.
In the case of Cherry v. Mitosky, 353 Pa. 401, 45 A.2d 23, 25, it is stated: "The `loan' of a chattel [is defined] as `A bailment without reward; consisting of the delivery of an article by the owner to another person, to be used by the latter gratuitously, and returned either in specie or in kind'." See also Klein-Simpson Fruit Co. v. Hunt, Hatch Co., 65 Cal.App. 625, 225 P. 14, 17.
It is our conclusion that the final decree from which this appeal is prosecuted should be and it is hereby affirmed.
Affirmed.
ADAMS, C.J., and THOMAS and BARNS, JJ., concur.
Upon Rehearing Granted
By petition for rehearing appellant has called our attention to the fact that the Special Master and the Chancellor gave credit to the appellee for excavation work which was done and performed by Rubin Construction Company and the Federal Soil Conservation Service. It is the contention of appellant that 13,655 cubic yards were not excavated by the appellee although credit was given to him for such excavation in the final decree. Upon a careful examination of the record we find that appellant's position is well taken.
Appellant brought suit to foreclose a chattel mortgage and the defendant-appellee answered and counterclaimed, setting forth certain obligations of the plaintiff-appellant to the appellee. A Master was appointed and the final decree followed the Master's findings.
The defendant's claim against the plaintiff was based upon a contract for excavating. A provision of the contract was: "And said excavation shall be measured by an engineer who is either a registered engineer with the State of Florida or possesses a state and federal civil service rating and is qualified to do survey work. In the event the Contractor shall be dissatisfied with the quantities of the material measured by the engineer in the employ of the owner, the Contractor shall be and is privileged to remeasure the excavation at his own expense."
Messers. Stephens and Spear were surveyors and not engineers and worked under C.K. Davis, an employee of the plaintiff. Plaintiff's Exhibit 6 was prepared by Davis upon information furnished him by Stephens and Spear, Davis was an engineer.
The report of Davis (plaintiff's Exhibit 6, Tr. p. 180) showed that 369,580 cubic yards were excavated and that of the amount Rubin had excavated 12,566 cubic yards, designated under Item #9 (of Exhibit 6) and 11,655 cubic yards, designated as Item #12 (of Exhibit 6) and that 2000 cubic yards had been excavated under Soil Conservation Service, designated under Item #16 (of Exhibit 6).
The testimony bears out the fact that these items relating to 12,566, 11,655, and 2,000 cubic yards, were excavated as indicated and there is no substantial contradiction as to any item. Against this, testimony shows that the defendant Thompson moved 9,295 cubic yards, for which Davis' statement made no allowance.
The Master and the Chancellor allowed a deduction of 12,566 cubic yards, as shown under Item #9, but failed, probably inadvertently, to deduct 11,655 cubic yards under Item #12 and 2000 under Item #16 (as per Exhibit 6).
The Master and the Chancellor accepted the fact that a total of 369,580 cubic yards were actually excavated and that the agreed compensation to Thompson was to be fifteen cents per cubic yard for excavation by him. From 369,580 cubic yards the 12,566 cubic yards were deducted as work done by Rubin. (See Item #12, Exhibit 6.)
Upon the foregoing facts it appears that the account between the plaintiff and defendant as to yardage should be settled as follows:Yardage. Dr. Cr.
369,580 12,566 9,295(?) 11,655 2,000 Net balance 352,654 _______ _______ 378,875 378,875 In consideration of the premises, it is our conclusion that the decree appealed from should be reversed and a balance struck as hereinbefore indicated, with leave to make inquiry as to the propriety of allowing Thompson credit for removing the 9,295 cubic yards, and the proceedings shall be concluded by the entry of an appropriate final decree. In all other respects we adhere to our original opinion.The final decree from which appeal was taken is accordingly reversed and the costs of the appeal shall be assessed equally between the parties.
ADAMS, C.J., and THOMAS and BARNS, JJ., concur.