In this case the defendant in error was plaintiff in the court below and will hereinafter be called plaintiff and the plaintiff in error was defendant in the court below and will hereinafter be called defendant.
The parties entered into a contract for the purchase and sale of certain fruit. The contract was as follows:
"Fruit Contract.
"This agreement made and entered into this the 30th day of November, A.D. 1926, by and between Green Rives, as agent for Dr. P. Phillips Company, of Orlando, Florida, hereinafter designated as the buyer, and J. H. Bowers of Brunswick, Md., c/o Peoples Nat'l Bank, hereinafter designated as the grower.
"WITNESSETH: That the grower do hereby sell and convey to the buyer his entire crop of oranges, grapefruit and tangerines blooming in the year 1926 and merchantable at the time of picking on one grove located at Lots 11 and 12, Sec. 23, Lakeland Hg. on the following terms.
"In bulk for the total sum of Seventy-five Hundred and No/100 dollars ($7,500) payment to be made as follows:
"$1,000.00 on the signing of this contract.
"$1,000.00 Jan. 1st, 1927.
"Balance when fruit is picked.
"Said grower hereby acknowledges receipt of One Thousand and no/100 dollars ($1,000.00) to apply on *Page 697 the purchase price of said fruit and to be deducted from the final settlement under this contract. Should the fruit not be taken by the Buyer the amount receipted for hereby shall be forfeited to the Grower as his sole liquidated damages hereunder.
"J. H. Bowers agrees to deliver to Dr. P. Phillips Co. Five Thousand (5,000) boxes of Grapefruit for the $7,500.00.
"IN WITNESS WHEREOF we have hereunto set our hands and seals the day and year first above written.
_________________________ "J. H. BOWERS, Grove Owner or Agent.
"WITNESSES: _______________________________ "GREEN RIVES, Agent for Dr. P. Phillips Co."
The $1,000.00 cash was paid upon the execution of the contract and the other $1,000.00 was paid January 1st, as per terms of the contract. After the payment of the second thousand dollars and before the fruit was gathered, it was destroyed by a freeze. The seller, Bowers, did not deliver to the purchaser, Dr. P. Phillips Co., 5,000 boxes of grapefruit as he was bound to do under the terms of the contract. the plaintiff sued to recover the Two Thousand ($2,000) Dollars together with interest thereon and also $2,500.00 for expected profits and $500.00 for expense in advertising the fruit for sale. The verdict was for $2,000.00 with interest and was so directed by the court.
The only question necessary for this Court to determine is whether or not under the terms of the contract the plaintiff *Page 698 was entitled to recover the money which he had paid to the defendant.
The declaration was in ten (10) counts. The first seven were the common counts. The 8th, 9th and 10th counts are special counts in damages for breach of the contract. It will be observed that the contract contains the following clause, to-wit:
"Said Grower hereby acknowledges receipt of One Thousand and no/100 dollars ($1,000.00) to apply on the purchase price of said fruit and to be deducted from the final settlement under this contract. Should the fruit not be taken by the Buyer, the amount receipted for hereby shall be forfeited by the Grower as his sole liquidated damages hereunder."
The contract also contains the following clause:
"J. H. Bowers agrees to deliver to Dr. P. Phillips Co. five thousand (5,000) boxes of Grapefruit for the $7,500.00."
These two clauses govern the construction of the contract and the construction which must follow is that Bowers agreed to sell and deliver to Dr. P. Phillips Co. five thousand (5,000) boxes of grapefruit for $7,500.00 and that he received at the execution of the contract $1,000.00 to be applied on the purchase price of the fruit and to be deducted from the final settlement under the contract and he agreed that in the event Dr. P. Phillips Co. did not take the fruit when tendered to it that he would accept the $1,000.00 paid as sole liquidated damages for the failure of Dr. P. Phillips Co. to take the fruit. He then bound himself to deliver to Dr. P. Phillips Co. 5,000 boxes of grapefruit and it must be construed that these grapefruit were to be delivered during that fruit-shipping season. *Page 699
For causes not within the control of the plaintiff, the particular fruit contracted for was destroyed and could not be delivered and the defendant did not deliver any other fruit in lieu thereof, but it is alleged and proven that he failed and refused to deliver the 5,000 boxes of merchantable grapefruit.
It is insisted by counsel for the plaintiff in error that this case is of unusual importance to the citrus industry of Florida and it may be, but it is chiefly important in that it shows the necessity for care which should be exercised by a grower in making and entering into contracts. The grower can not expect the courts to make his contracts for him. He must expect to be bound by the contract which he makes, just as must every other individual transacting business, and if he makes a contract obligating himself to deliver so much fruit for a stipulated sum of money and receives a cash payment in consideration of the execution of such contract he must deliver the fruit, or at least return the money so received. It is quite an easy matter for him to so frame his contract as to be under no obligation of this sort and to so frame the contract as to have the buyer assume the risk of any loss or damage to the fruit if such is the intention of the parties when the contract is made.
We think there is no reversible error exhibited by the record and, therefore, the judgment should be affirmed. It is so ordered.
Affirmed.
WHITFIELD, P. J., and STRUM, J., concur.
TERRELL, C. J., and BROWN, J., concur in the opinion and judgment.
*Page 700ELLIS, J., dissents.