The plaintiff in the court below, plaintiff in error here, filed a declaration composed of four counts, the first two in conversion and the last two in trespass. The first count in conversion and the first count in trespass do not charge any wilful or wanton conduct, whereas the second and fourth counts charge respectively a wilful conversion and a wilful trespass. The basis of fact underlying all the counts consisted in a charge that the defendant took five hundred and sixty one field boxes of Valencia oranges belonging to the plaintiff of the value of $1120.00. The first count charges that the defendant converted these field boxes of oranges to its own use and wilfully deprived the plaintiff of the use and possession of the same. The second count charges that such conversion was wilful. The third count charges that the defendant broke and entered upon certain land of the plaintiff, described in said count, and then and there removed certain property of the plaintiff, namely, some five hundred and sixty-one field boxes of oranges, of the value of $1120.00, and then and there also injured and damaged certain other property of the plaintiff, the remaining oranges then growing and remaining on the property, to the extent of $2500.00. The fourth count makes the same charge as *Page 414 the third but charges that the trespass and conversion were wilful and also that the damage to the remaining oranges in the grove was wilfully done. The declaration alleges that the acts complained of were done on February 11th and 12th, 1935, in Polk County, Florida.
The defendant filed five pleas, but the second plea was withdrawn. The first plea is the plea of not guilty. The third plea reads as follows:
"3. That it did what is complained of by the plaintiff's leave; that the plaintiff, on February 9, 1935, following an unprecedented spell of cold and consequent damage to fruit throughout Florida, engaged one J.M. McCord, a representative of this defendant, to handle and market all of the plaintiff's said fruit according to the best judgment of the said J.M. McCord, and to ship the same through this defendant as marketing agent, in accordance with its usual practices with the understanding that from the proceeds of all fruit sold the defendant would deduct all customary charges and expenses and remit to plaintiff the net proceeds remaining; that pursuant to such understanding and agreement the said J.M. McCord did handle, pick and market the fruit mentioned in plaintiff's declaration, according to his best judgment, and that after deducting said charges from the proceeds thereof, the net proceeds to be remitted to the plaintiff amounted to the sum of $243.63. That defendant always was and still is ready and willing to pay to the plaintiff the said sum of $243.63, and before action, on the 4th day of March, A.D. 1935, defendant tendered and offered to the plaintiff to pay him the same, and the plaintiff refused to accept it; and the defendant now brings the said $243.63 into Court ready to be paid to the plaintiff."
There was a further plea to the second count denying that defendant wilfully converted or wilfully deprived plaintiff of said goods, and a further plea to the fourth *Page 415 count denying that defendant wilfully trespassed upon and broke and entered upon the land of the plaintiff or wilfully converted or deprived plaintiff of said goods, or that it had wilfully damaged other property of the plaintiff.
In so far as the pleadings are concerned the main controversy here concerns the sufficiency of the third plea above quoted. The court overruled a motion to strike and a demurrer addressed to each and all of the pleas except the first plea, which was a plea of the general issue. The grounds of the motion to strike and likewise of the demurrer were practically identical. These grounds were (1) that the plea is within the scope of the plea of not guilty, (2) does not present a defense to the declaration or any part thereof; (3) presents an irrelevant issue; (4) presents an immaterial issue, and (5) confesses but does not avoid the count of the declaration to which it is addressed.
The court denied the plaintiff's motion to strike, but sustained plaintiff's demurrer to the fourth and fifth pleas. Thus the case went to trial on the plea of the general issue and the third plea above quoted, the plaintiff having joined issue upon said plea.
A considerable amount of testimony was introduced before the jury by the respective parties. The result of the trial was a verdict and judgment in favor of the defendant; motion for new trial was overruled, and the plaintiff sued out this writ of error.
The evidence introduced by the plaintiff tended strongly to support the plaintiff's case as alleged in the declaration, whereas the evidence introduced by the defendant tended strongly to support the defense alleged in the defendant's first and third plea. Thus the evidence was sharply in conflict on the vital issues in the case and the court below was justified in denying the motion for a new trial, as well as in denying the motion for judgment non obstante veredicto, *Page 416 or for repleader. Nor would this court be warranted to hold the trial court in error in so doing, in spite of the very able and earnest argument which has been made in this court to the effect that the verdict was against the weight of the evidence. When a jury renders a verdict in a contested case where there is a conflict in the evidence on the material issue or issues joined between the parties, it is seldom indeed that an appellate court will set aside the jury's verdict on appeal. It is well settled in this State that the jury are the sole judges of the credibility of the witnesses and the weight of the evidence. In cases where there is a conflict in the evidence, but where there was presented to them substantial evidence which, if believed, would support their verdict, it should not be set aside merely because there was other substantial evidence in the case conflicting therewith. There was no attempt to impeach the character or veracity of any of the witnesses in the case at bar, and the conflict in their testimony was such as only a jury could settle and determine. Of course, when it appears on appeal that there was no substantial evidence to support the verdict of the jury, or if upon the whole evidence the verdict is clearly wrong, or if it appears that the jury were governed in reaching their verdict by something outside of the evidence in the case, a new trial should be granted. See Maxwell v. Agnew, 25 Fla. 154; Glover v. State, 22 D. Fla. 493; Groover v. Hammond, 75 So. 857,73 Fla. 1155; McClennon v. Wood, 78 Fla. 407, 83 So. 295; Varga v. Marcus Conant Co., 81 Fla. 780, 89 So. 126. A judgment against defendant should be reversed where the evidence is insufficient to establish a material fact necessary to create liability. Florida East Coast Railway Co. v. Wright, 96 Fla. 656,118 So. 916. A new trial should be granted where the verdict is against the clear weight of the evidence or manifestly contrary to the *Page 417 evidence. Howell v. Blackburn, 100 Fla. 114, 129 So. 341. See also Florida Telephone Corp. v. Wallace, 104 Fla. 566,140 So. 472.
The third plea of the defendant, as set forth above, is claimed by the plaintiff not to have presented a material issue because it set up in a single plea both leave and license and tender with amends; also that the plea is duplicitous.
Neither the motion to strike nor the demurrer to the third plea raised the question of duplicity. The failure to object to the third plea on this ground, either by motion to strike or for compulsory amendment, or by demurrer, waived any objection to said plea on the ground that it was duplicitous. F.E.C. Ry. Co. v. Anderson, 110 Fla. 290, 148 So. 553. Where two distinct causes of action are embraced in the same count, or two distinct defenses are embraced in the same plea, it renders the count or plea duplicitous, and subject, not to demurrer, but to a motion for compulsory amendment under the statute. Strout Farm Agency v. Hollingsworth, 92 Fla. 673, 110 So. 267; Blue v. Staten, 84 Fla. 274, 93 So. 686. Where a count of a declaration or a plea does not wholly fail to state a cause of action or defense, the court should not sustain a demurrer thereto, or a motion to strike the count or the plea, thus attacked, as a whole. Cooperative etc., Co. v. Shields, 71 Fla. 110, 70 So. 934.
Sections 4332-4333 C.G.L. describe forms of pleas which shall be sufficient in the cases to which they shall be respectively applicable. The statute provides that these forms may be used with such modifications as may be necessary to suit the facts of the case, and that nothing in the statute shall render it erroneous to depart from the letter of such forms, so long as the substance be expressed without prolixity. Under the heading "Pleas in Actions for *Page 418 wrongs independent of contract," the statute provides among other forms the following:
"Leave and License. That he did what is complained of by the plaintiff's leave."
The third plea starts off with the language thus allowed by the statute and sets up what the defendant contends was the agreement between the parties, which gave defendant leave to enter and pick the oranges, and then goes on to allege the performance by defendant of such agreement and the tender to the plaintiff of the net proceeds of the sale of the fruit. In the case of Simms v. Alford, 219 Ala. 216, 118 So. 395, it is said:
"If consent was given to cut timber to satisfy the saw bill without stipulation as to price, the law intervened and fixed the reasonable value of the timber as the agreed price by implication.
"That consent to the act complained of is a full defense in trespass is well settled. Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202 and note; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; 26 R.C.L. page 946, Sec. 21.
"Defendant interposed a special plea of consent to this count. The court sustained a demurrer upon the ground that it was covered by the general issue. In the early case of Finch v. Alston, 2 Stew. P. 83, 23 Am. Dec. 299, it was declared that evidence of plaintiff's consent to the act complained of is not admissible under the general issue — `not guilty' — in an action of trespass. Being matter in justification, it must be specially pleaded. This rule was reaffirmed in the late case of Louisville N.R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A.L.R. 251. There was error in the ruling on demurrer as to the count in trespass."
In the case of Southern Railway Co. v. Harris, 202 Ala. 262,80 So. 101, it was held that under the common law, *Page 419 tender is not available where the action is for unliquidated damages for a conversion of the plaintiff's goods, the amount of which is subject to the jury's discretion. It was also held in that case that where the value of the property was conclusively shown to be subject to fluctuation, it was within the jury's discretion, from the data afforded by the testimony, to ascertain and apply the highest market value of the cotton, which was the property involved in that case, between the date of the conversion and the day of the trial.
But the effect of the third pleas here was in part, to deny that there was any conversion or trespass. It was merely a plea that the defendant did what the declaration charged with the plaintiff's leave or consent, setting forth the manner in which such consent was given, which was by way of a contract or agreement between the parties, and alleging that such agreement was kept and performed by the defendant. Even if the plea was duplicitous, which question it is not necessary to decide, the fact that the court's attention was not called to this, and no objection was made on that ground, until after the verdict was, as above pointed out, a waiver of such objection. Certainly the plea did not present an immaterial issue. Nor was it a plea of disclaimer with tender of amends under section 4328 C.G.L. The plea did not admit that the defendant had committed any trespass whatever, much less that it was negligent or involuntary, which is of the substance of the plea of disclaimer in actions quareclausum fregit, as provided for by said Section 4328. See Crandall's Common Law Prac., 137-140.
If the plaintiff had interposed a motion for compulsory amendment, to require the defendant to strike from the plea the allegation as to tender of the net proceeds, a somewhat different question would be presented, but plaintiff did not do this. Nor did he make any motion to strike any *Page 420 other portion of the plea. The motion made was to strike the plea as an entirety and was properly denied. In this connection we might observe that it does not appear that tender was intended to be pleaded by the defendant as a substantive defense. It is obvious that the intention of the pleader was to show what the defendant claimed was the agreement between the parties under which the defendant had "leave" and pursuant to which it entered and picked the fruit, a part of which agreement required the payment of the net proceeds to the plaintiff, and incidentally alleged that this agreement was performed. It is therefore extremely doubtful that the third plea could be denominated as a duplicitous plea.
It is further contended that the court erred in charging the jury that the charges made by the plaintiff against the defendant must be proved "to the satisfaction of the jury by the greater weight of the evidence, and that if the evidence does not preponderate in favor of the plaintiff," then their verdict should be for the defendant.
We find no reversible error in this charge, especially when considered in connection with the other charges given by the court. Elsewhere in the charge, the court correctly defines to the jury the meaning of the words "preponderance of the evidence," which had been referred to in a number of the charges. Plaintiff in error objects to the words "to the satisfaction of the jury" as used in said charge, but the court added thereto "by the greater weight of the evidence." Thus the word "satisfaction" did not intensify the proof required to entitle the plaintiff to a verdict when construed in connection with the entire language of the charge. It still left the jury to understand that the plaintiff would be entitled to recover if he proved his case by the "greater weight of the evidence." But usually the jury must be at least reasonably satisfied, or in *Page 421 other words, be able to reach a decision or conclusion, from the weight of the evidence, which would be satisfactory to themselves. In order to produce that result, or to carry such conviction to the minds of the jury as would be satisfactory to them, the charge gave them to understand that the plaintiff's proof need not be greater than a preponderance, or "greater weight," of the evidence. See Chaffen v. Fries Mfg. Co. (N.C.)47 S.E. 226; 14 R.C.L. 728-9, 64 C.J. 719-725. Certainly this charge, taken in conjunction with the remaining charges to the jury, is not objectionable.
Plaintiff in error also contends that the court erred in refusing requested instruction No. 6, which dealt with the responsibility of a corporation for the acts of its agents within the real or apparent scope of their authority as such agents; also as to the refusal of requested instruction No. 7, along the same line. Such refusal to give these charges did not constitute reversible error in this case. There was no controversy between the parties on the question of agency. The agency of J.M. McCord, who represented the defendant in the transaction involved in this case, was nowhere denied, and indeed it is admitted by the third plea interposed by the defendant. This makes it unnecessary to discuss the question as to whether the second clause of the 5th paragraph of Section 4333 C.G.L. (Cir. Ct. Rule 32) was applicable or not, it being clearly admitted both by the pleadings and the evidence that McCord was acting for the American Fruit Growers, Inc. In this connection, see Smith v. Coleman, 100 Fla. 1707, 132 So. 198.
Nor was there any error in the refusal to give plaintiff's requested instruction No. 8. It is settled both by court rule and statute that in actions for torts the plea of not guilty shall operate as a denial of the breach of duty or wrongful act alleged to have been committed by the defendant, *Page 422 and not of the facts stated in the inducement. Inducement in a pleading is the statement of matter which is introductory to the principal subject of the declaration or plea and which is necessary to explain or elucidate it. Varnes v. Seaboard Airline Railway Co., 80 Fla. 642, 86 So. 433. That part of the declaration alleging the trespass and conversion could hardly be considered mere inducement. The scope of the plea of "not guilty" in actions for trespass to land is set out in Circuit Court rule 34, as follows:
"In actions for the trespass of land, the plea of not guilty shall operate as a general denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's right of possession of that place, which, if intended to be denied, must be traversed specially."
I find no reversible error in the record and think that the judgment of the court below should be affirmed.
WHITFIELD, J., concurs.