I adhere to the original opinion in this case. I discovered nothing in the oral argument or in the briefs submitted affecting the basic principles of the original opinion.
The action was an action ex delicto. The third plea sought to inject into the proceedings the question of a breach of contract and tender of amends. The verdict being for the defendant the judgment could only follow that verdict which was that the plaintiff take nothing by his plaint, which, of course, means that he recovers nothing because of the tort of which he complained and such was the judgment entered. Yet it is perfectly apparent from the pleadings and the evidence in this case that the jury may have been influenced by first, the existence of a *Page 423 contract vel non; secondly, whether the oranges were sold at the best price under that contract, and third, whether a tender had been made of the amount realized from the sale of the oranges less ordinary expenses and whether there was a tender of such amount in court. So far as the judgment in this case is concerned, the defendant may withdraw the money which it has put into court, which it could not do if the plaintiff had brought an action ex contractu and the pleas had been as they were.
Rehearing denied.
TERRELL, BUFORD and CHAPMAN, J.J., concur.
WHITFIELD, and BROWN, J.J., dissent.