Opinion
October 9, 1951. Rehearing Denied November 1, 1951.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Daniel L. Ginsberg, Miami, and Harold Ungerleider, Miami Beach, for appellant.
Sibley Davis, Miami Beach, for appellee.
The plaintiff-appellee, Advertects, Inc., filed a common law action against defendant-appellant, Sawyer Industries, Inc., in the Circuit Court of Dade County, Florida. The first count of the complaint alleged that Sawyer Industries, Inc., was indebted to the plaintiff in the sum of $31,631.39 for money payable by the defendant to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them. The second count seeks a recovery of $31,631.39 for money payable by the defendant to the plaintiff for money paid by plaintiff for defendant at its request. The third count is for $31,631.39 for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff.
Count four alleged that the plaintiff was engaged in the advertising business and the defendant was a manufacturer and was selling its products by mail order. On May 1, 1950, the parties entered into an oral agreement whereby plaintiff agreed to advertise the defendants manufactured products in magazines of national circulation. For the service defendant agreed and obligated itself to pay plaintiff the net amount expended by plaintiff in advertising defendant's manufactured products, plus the additional sum of 15% of the net amount so expended. The plaintiff performed its part of the oral agreement and incurred indebtedness for advertising in magazines of national circulation the defendant's manufactured products. The defendant became obligated to pay the plaintiff for the services rendered the sum of $31,631.39, being the costs of the advertisement for defendant's products with magazines and compensation due the plaintiff, according to their oral agreement. Attached to the complaint is an itemized bill of particulars totaling the sum of $31,631.39.
On December 21, 1950, Sawyer Industries, Inc., filed its answer to the complaint viz.: "that the defendant denies each and every allegation contained in each and every count of plaintiff's complaint." Likewise, the defendant filed a request or demand for trial by jury in words viz: "The defendant herein demands a trial by jury in the within cause," signed "Harold Ungerleider, Attorney for Sawyer Industries, Inc."
On January 19, 1951, the plaintiff, Advertects, Inc., filed in the Court below its motion for a summary judgment as provided for by Common Law Rule No. 43, the grounds being: (1) that the defendant Sawyer Industries, Inc., is indebted to the plaintiff in the sum of $31,631.39, which sum is just, due, true and unpaid as more fully appears by the complaint filed; (2) that from the evidence adduced before the Court on October 12, 1950, it appears that the defendant Sawyer Industries, Inc., has no valid defense to plaintiff's claim.
Pursuant to an order of the Court dated January 31, 1951, the defendant below filed a denial and counterclaim against Advertects, Inc. The denial is substantially as above recited and the counterclaim sets out that the defendant-appellant was promoting the sale of a novelty item known as "Fleurettes". The defendant was induced by the plaintiff to have the same manufactured in Miami by the Pan American Metal Products Company. The Pan American Metal Products Company failed to manufacture the above named novelty item according to sample, specifications and within the time agreed upon. These several breaches of agreement ruined the sale and good will of the novelty item "Fleurettes". It further set out that the failure of Pan American Metal Products Company to manufacture "Fleurettes" according to sample, specifications and within the time agreed upon was a part of a plan, scheme and design on the part of Advertects, Inc., and Pan American Metal Products Company to jointly appropriate and acquire the property of the defendant Sawyers Industries, Inc. The remainder of the counter-claim sets forth the injuries and losses due to the joint and concerted action of Advertects, Inc., and Pan American Metal Products Company.
On February 21, 1951, a hearing was had in the Court below on motion for summary judgment authorized by Common Law Rule No. 43. Evidence was adduced by the plaintiff below, as shown by the orders of the trial court, but such evidence was not brought to this Court. Costs of advertising according to the contract of the parties as was done or had prior to "October, 1950, issues of magazines" in the sum of $12,905.96 were approved and a summary judgment therefor was entered. From this judgment the defendant Sawyer Industries, Inc., appealed.
In the record are affidavits of two of the stockholders of Sawyers Industries, Inc., and these were, no doubt, considered by the trial court as evidence in behalf of or supporting the pertinent allegations of the counterclaim. We have reviewed the same in light of the contention of counsel as made in their brief and in oral argument at the bar of this Court. This counter claim was before the trial Court, coupled with a request or demand for a jury trial as made by the counterclaimant.
Summary Judgment Rule No. 43 was never intended to deprive a litigant of a constitutional right of trial by jury, where such a trial was seasonably requested. It simply grants the trial Court authority to hear and determine the merits of the claims of the respective parties according to the evidence and in light of the applicable law. If upon the hearing it appears to the trial Court that an asserted claim is without merit either in law or fact and nothing could be accomplished in submitting such doubtful issues to a jury, under appropriate instructions, then under the conditions and circumstances a summary judgment should by the trial Court be entered. As we study the record, the counterclaim was without merit and the affidavits of the defendants-appellants in the record failed to set out any defense to plaintiff-appellee's cause of action.
Affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.