text:
    Jay MALLIN, Appellant, v. The UNIVERSITY OF MIAMI, a nonprofit Florida Corporation, Appellee.
    No. 76-2293.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.

      Ellis Rubin and H. Lee Bauman, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Robert Pondolfi, Miami, for appel-lee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the plaintiff below from an adverse summary judgment.

On January 20, 1970 a written contract was entered into between the appellant Jay Mallín, an author referred to in the contract as the Proprietor, and the appellee University of Miami, referred to in the contract as the Press, for the publication, distribution and sale by Press of a work of the author entitled “General Giap on War: a Documentary Collection”. Pertinent provisions of the contract included recital of delivery of the author’s manuscript to Press and his assignment to Press of the exclusive publication rights thereto; for the author or Proprietor to receive from Press royalties of 10% on domestic sales of the published book by Press and royalties of 8% on its foreign sales; and an agreement by Press to publish the Work, and to supply ten published copies to the author free of charge. The provision in the contract by which Press agreed to publish and market the work, for a recited received consideration, was as follows:

“PUBLICATION AND SALE
“11. The PRESS further agrees to publish and market the WORK at its own expense, except as provided elsewhere in this agreement, in such style as the PRESS shall determine in accordance with its established practice and standards and in such manner (including title, price, date of publication, form and kind of advertising, and distribution of free copies) as it shall deem expedient, taking into consideration insofar as reasonable the wishes of the PROPRIETOR. It is mutually agreed that the PRESS shall have all proceeds from the sale of the WORK, except the percentages or royalties herein otherwise provided to be paid to the PROPRIETOR by the PRESS.”

The contract contained a provision for termination of the agreement “after two years from the date of publication” if Press should not feel it could continue to advantage to sell the Work, in which event Press could terminate the agreement upon written notice to the Proprietor, following which the Proprietor could purchase from Press published copies of the Work then on hand or, if not so purchased, Press could dispose thereof at any price obtainable without payment of further royalties.

On January 15,1976, prior to any publication of the Work having been made, Press sent a letter to the author advising him that Press was “no longer in a position to consider the publication of your book”, and requesting that the author agree to a mutual termination of the contract.

Thereupon, on January 20, 1976, the author filed a complaint against Press for damages for breach of contract, attaching as exhibits copies of the contract and above-mentioned letter and alleging the making of the contract and the failure of Press to perform thereunder, claiming damages for loss of royalties, and loss consequent on the delay and non-performance.

The defendant answered admitting the alleged contract and denying other allegations. As affirmative defenses, the answer averred the contract was unenforceable by being within the Statute of Frauds under Section 672.2-201, Florida Statutes (1975); and alternatively averring that the manuscript delivered to Press by the author was not an “acceptable manuscript” and was not in publishable form. The plaintiff filed a reply to the affirmative defenses, denying the averments thereof.

The defendant Press moved for summary judgment on the ground that the contract was unenforceable because it did not specify the quantity of books to be published and sold by the defendant; and that there was no agreement of the parties as to the number of volumes to be published and sold by the defendant.

In support of the motion, defendant filed affidavits of several directors of Press, stating that during the period involved they had not entered into any agreement with the author specifying the quantity of volumes of the Work to be published. Also, an affidavit of a director of Press stating that in contracts between an author and a publisher it is not customary or the usual practice to designate the number of books to be published pursuant to such a contract, and that he had never known of such a contract which did so.

In opposition to the motion for summary judgment the plaintiff filed his affidavit, stating he had been a party to more than six such publishing contracts in addition to the one involved here, and that in none of them had the number of books to be published been set forth; that it was not the custom or usual practice in the publishing industry for one agreeing to publish a book to designate the number of books to be published; and that the number of books which are published under such contracts is determined by “market conditions”.

In granting summary judgment for the defendant, the court held there was no genuine issue as to any material fact, and that the Uniform Commercial Code was applicable.

On appeal, the plaintiff-appellant contends the trial court was in error in holding the Uniform Commercial Code (UCC) was applicable and operated to bar recovery, for the reason that the transaction involved here is not one to which the provision of the UCC, relied on by the court, relates. We agree with that contention of the appellant and reverse.

The section of the UCC invoked by the court, and relied on by the appellee, is Section 672.2-201(1), Florida Statutes (1975), which reads as follows:

“Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under the paragraph beyond the quantity of goods shown in such writing.”

The UCC, at Section 672.2-102, Florida Statutes (1975) states:

“Unless the context otherwise requires, this chapter applies to transactions in goods; * * * ”

Consistent with the latter, the above quoted Section 672.2-201(1) deals with the necessity for a writing in a “contract of sale”. Thus that section provides that a “contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense” unless supported by such writing, with a further provision therein that such a contract (for the sale of goods) is not enforceable “beyond the quantity of goods shown in such writing”.

That section of the UCC is inapplicable. There is no need for extensive discussion. This transaction did not involve a sale of goods by the publisher to the author. The publisher agreed to perform services. The only sales to be made were those which it was contemplated would be made by the sale of books when published, by the publisher to persons who would buy the books from it. Therefore the fact that the number of books to be published was not specified in the publication contract was not material, and furnished no basis to hold that the contract was unenforceable. We agree with the conclusion of the trial court that there was no genuine issue of material fact. However, for the defendant publisher to be entitled to a summary judgment it was necessary, in addition, that it be made to appear on the record that the defendant was entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). Here the contract declared upon was not one within the Statute of Frauds or otherwise rendered unenforceable under Section 672.2-201, Florida Statutes (1975). The holding of the trial court to the contrary, and therefore that the defendant was entitled to judgment as a matter of law, was incorrect.

The appellee argues that even if the UCC does not apply and the contract should be considered valid and enforceable there could be no determinable damages. With regard to the question of damages, if any, we express no opinion.

Accordingly, the summary judgment is reversed, and the cause is remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Claire Felice KASSER, Appellant, v. Norman J. KASSER, Appellee.
    No. 77-184.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Quinton, Leib & Lummus and Karl J. Leib, Jr., and James D. Adams, Miami, for appellant.
    Bartel, Levine & Shuford and Paul J. Levine, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla.3d DCA 1977).


text:
    Paul Graham HOEPFL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1057.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Saul T. Von Zamft and Samuel E. Smith, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. The cause is remanded to the trial court to correct what both parties concede to be a clerical error in the judgment of conviction, to wit: the said judgment should be amended to reflect that the defendant herein was convicted of improper exhibition of a weapon under Section 790.-10, Florida Statutes (1975).


author: MILLS, Acting Chief Judge.

text:
    Robert E. McLAIN, Appellant, v. DAPS DISCOUNT AUTO PARTS STORE, INC., a Florida Corporation, Appellee.
    No. CC-331.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.

      Danny L. Kepner and M. J. Menge of Shell, Fleming, Davis & Menge, Pensacola, for appellant.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   MILLS, Acting Chief Judge.

This appeal is from a final judgment awarding McLain One Dollar in damages. McLain’s action against DAPS Discount Auto Parts Store, Inc. (DAPS), a Florida corporation, was based on an Alabama judgment McLain obtained against Discount Auto Parts, Inc. (Discount), an Alabama corporation. McLain sought to have DAPS held liable for the Alabama judgment on the theory that DAPS was the “alter ego” of Discount. Alternatively, McLain sought to hold DAPS liable for the value of merchandise which had been fraudulently transferred from Discount to DAPS.

A jury trial was held and after all the evidence had been presented, the trial court instructed the jury on both the “alter ego” theory and the fraudulent transfer theory but further instructed the jury that if it found for McLain it could award only nominal damages. The jury’s first verdict of $7,500 was not accepted by the court, and after further instruction the jury returned a verdict of One Dollar. Judgment was entered and this appeal ensued. DAPS filed cross-assignments of error.

McLain contends that the court erred in instructing the jury that it could award only nominal damages if it found for him. We agree. One of the theories submitted to the jury was that DAPS was the “alter ego” of Discount. If a corporation is found to be the “alter ego” of another corporation, the separate corporate identities are disregarded and the two corporations are considered as one entity. Thus, the jury should have been instructed that if it found for McLain on the “alter ego” theory, its verdict must be for $100,000, the amount of the Alabama judgment, plus interest. However, it is not clear from the verdict that the jury based its decision on the “alter ego” theory. The jury was also instructed that if it determined that DAPS was not the “alter ego” of Discount, it should decide whether “assets were transferred from the Alabama corporation to the Florida corporation without consideration in an attempt to evade the claim of the plaintiff against the Alabama corporation. . . "

McLain contends that there was sufficient evidence from which the jury could determine the amount of damages resulting from the fraudulent transfer of assets. The only evidence of a fraudulent transfer of assets was that in 1966, while McLain’s suit was pending in the Alabama courts, all the assets of Discount and another corporation, Automotive Engine Warehouse, were moved out of the State of Alabama. Although there was conflicting testimony as to where the merchandise was taken, there was testimony indicating that eight to ten percent was sent to DAPS in Pensacola. Further, there was testimony that at the time of the transfer Discount had five retail stores in Mobile, that the small stores carried stock of Seven or Eight Thousand Dollars and that the two bigger stores had stock worth Fifteen to Twenty Thousand Dollars. Thus, the jury could have found that at a minimum Discount transferred Fifty-one Thousand Dollars worth of assets out of the State of Alabama and that eight to ten percent of those assets went to DAPS. In McCall v. Sherbill, 68 So.2d 362, 364 (Fla.1953), the Supreme Court stated:

“There are many types of cases in which damages may be certain, but the amount of damage may be uncertain. However, such uncertainty will not necessarily preclude recovery.
“ . . . [Djamages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient that there be a reasonable basis of computation although the result may be only approximate.”

The other points raised by the parties on appeal concern the court’s refusal to give certain instructions requested by McLain or Discount. McLain contends that the jury should have been instructed that it could consider records kept by DAPS regarding debts owed by DAPS to Discount in order to determine the value of assets transferred from Discount to DAPS. The trial judge properly refused to give this instruction since there were no records indicating a debt to Discount. The only testimony on this issue concerned a possible debt from DAPS to Automotive Engine Warehouse. Although McLain urges that the distinction between Discount and Automotive Engine Warehouse should be ignored on the theory that Discount was the “alter ego” of Automotive Engine Warehouse, this theory was not alleged in the pleadings and was not presented to the jury.

DAPS also urges that several of the instructions it requested should have been given. The instruction that “ . separate businesses under separate management cannot be disregarded because one corporation borrows money from another . ”, was properly refused since there was no evidence of either DAPS or Discount borrowing money from the other. DAPS requested instruction on the elements of fraud was inapplicable and properly not given. The requested instruction that “Every reasonable presumption must be indulged in favor of the validity and propriety of a corporation in determining whether it is a mere instrumentality of another corporation” is not supported by Florida law. Finally, instruction number four was covered by other instructions given by the court, thus it was not error for the court to refuse to give it.

Reversed and remanded for a new trial.

SMITH and ERVIN, JJ., concur.


author: BY ORDER OF THE COURT:

text:
    Fred Kevin O’BRIEN, M. D., Taufick E. Bendeck, M. D., Appellant, v. Margaret F. PLIKAITIS, as the widow of Peter A. Plikaitis, Jr., and as the personal representative of the Estate of Peter A. Plikaitis, Jr., and Claire Plikaitis, Margaret Plikaitis and Peter Plikaitis, as the natural minor children of Peter A. Plikaitis, Jr., deceased, and Palm Beach Gardens Community Hospital, Inc., Appellees.
    Nos. 77-2641, 77-2617.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1978.
   BY ORDER OF THE COURT:

ORDERED that the Motion for Dismissal filed January 4.1978 is hereby granted, and the above styled case is hereby dismissed as to Case No. 77-2641; and further

ORDERED that this Appeal shall proceed only as to Case No. 77-2617.


text:
    Warren W. BOHN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-172.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Defendant, Warren Bohn, appeals the summary denial of his motion to vacate judgment and sentence pursuant to Fla.R. Crim.P. 3.850.

In a negotiated guilty plea to second degree murder, Bohn received a prison sentence of 25 years. Subsequently, he filed the instant motion to vacate attacking his judgment and sentence on the following grounds: (1) the sentencing judge failed to find a factual basis to support the guilty plea; (2) he did not plead guilty; (3) the presentence investigation report contained errors in that it listed a prior felony when, in fact, there was no felony because he was a juvenile at the time of commission, thus this information was to be suppressed; (4) the police report contained fabrications and distortions; and (5) the court erred in declaring him partially indigent for costs when, in fact, he was totally indigent. The judge who sentenced Bohn also considered the motion to vacate and then summarily denied it for the reasons that the record affirmatively showed that Bohn pled freely and voluntarily with the aid and consultation of counsel and the evidence admitted at the guilty plea proceedings affirmatively showed that there was a basis in fact to support the plea of guilty. The judge further found that the motion to vacate was insufficient in substance to support the prayed for relief.

The established law is that the trial court need not conduct a hearing on the merits when the grounds of the motion to vacate are totally insufficient or are refuted by the record after the required examination thereof. State v. Weeks, 166 So.2d 892 (Fla.1964); Maisonave v. State, 171 So.2d 443 (Fla.3d DCA 1965).

Examining Bohn’s motion to vacate in light of the above principles of law, we find that grounds 1, 2 and 5 are clearly refuted by the record. Turning next to the remaining grounds 3 and 4, we note that these allegations are unsupported as the reports are not attached to the motion and there are no affidavits of anyone who read the reports to the effect that they are erroneous or distorted. See Stringer v. State, 246 So.2d 136 (Fla. 4th DCA 1971). In addition, a reading of the transcript of the sentencing hearing reflects that the judge was aware that Bohn had no previous convictions, and there was no mention of any prior convictions. Last, the same judge who adjudicated Bohn guilty and imposed sentence upon him denied the subject motion to vacate, and implicit in the denial was the fact that any errors in the presen-tence report and/or in the police report did not influence him when he imposed the sentence upon Bohn. Cf. Iacovetti v. United States, 534 F.2d 1189, 1191 (5th Cir. 1976).

Affirmed.


author: HOBSON, Acting Chief Judge.

text:
    HAVATAMPA CORPORATION, Appellant, v. WALTON DRUG CO., INC., d/b/a Touchton Drugs, and Robert E. Edrington, Appellees.
    No. 77-594.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    Rehearing Denied Feb. 28, 1978.
    Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    Robert Goldhagen, Tampa, for appellee Robert E. Edrington.
   HOBSON, Acting Chief Judge.

The question presented by this appeal is whether a complaint on a promissory note states a cause of action against an agent as an individual where the principal’s name is on the face of the note and the agent signed his name and office but the note does not clearly indicate an understanding by the parties to the note that the agent not be individually liable. The court below ruled that the complaint did not state a cause of action against the agent and ordered the agent dismissed from the action. We disagree and reverse that order.

Havatampa sold wholesale merchandise to Walton Drugs, Inc. on open account. A form promissory note was executed evidencing this debt. The note stated, “we promise to pay . . . .” The word “we” was typewritten in the printed sentence. The printed signature lines, including the words “seal,” were introduced by a typewritten identification of the makers as follows:

The “x” marks were handwritten. Edring-ton executed the note by signing as follows: “Bob Edrington, President.” This signature of Edrington’s name was placed on the second signature line.

Havatampa brought suit on the note against Walton Drugs, Inc. and Edrington. Edrington sought dismissal from the suit because “. . . the Note, which is the subject matter of the Complaint herein, clearly indicates that it was executed by the President of the corporation and not personally by the Defendant, Robert E. Ed-rington.” Havatampa offered parol evidence that Edrington was informed at the time of execution that Havatampa required Edrington’s personal liability on the note. The trial court dismissed Edrington from the suit. In support of the trial court’s ruling, Edrington argues 1) that the note unambiguously indicates that the corporation only was liable and parol evidence would not be admissible to show Edrington was bound; and 2) that, as a matter of law, Edrington signed in a “representative capacity” and is therefore absolved of personal liability under Section 673.403, Florida Statutes (1975).

This case is unique in that the name of the principal, Walton Drugs, Inc., appears in the note with the signature and office of the agent but the manner in which it appears is such that the signature of the agent and notation of his office do not clearly indicate that the agent was signing as an agent only and not as an individual. We are of the opinion that the face of the note does not sufficiently reflect the understandings of the parties so as to preclude introduction of parol evidence of the understandings of the parties concerning Edring-ton’s personal liability, and does not avail Edrington of the freedom from personal liability provided by Section 673.403(3). Accordingly, the complaint grounded on the note stated a cause of action against Ed-rington as an individual.

Neither the body of the note nor the form of Edrington’s signature preclude parol evidence establishing Edrington’s personal liability. They do not unambiguously indicate that Edrington was signing as an agent only and not as an individual. The use of “and/or” in the typewritten identification of the makers of the note could indicate 1) that the corporation only was to be bound; 2) that Edrington only was to be bound; or 3) that both the corporation and Edrington were to be bound. This typewritten identification of the makers is of no probative value in determining the capacity in which Edrington signed the note. Turning, then, to Edrington’s signature in isolation, we find that Edrington signed the note “Bob Edrington, President” on the line allocated for the signature of “Bob Edrington, Owner.” One can only speculate from the face of the note whether the parties understood Edrington’s use of the word “President” as a description of the signor [as a descriptio personae as the term “Owner” was used,] or as a limitation of Edrington’s capacity. The face of the note is patently ambiguous in its identification of the “we” who were promising to pay the note. The parol evidence rule does not foreclose the statement by the complaint of a cause of action against Edrington.

The law of negotiable instruments also does not preclude Havatampa’s claim against Edrington as an individual. Ed-rington argues that he complied with Section 673.403(3) and is therefore absolved from personal liability on the note. Section 673.-403(3) provides that “(e)xcept as otherwise established, the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity” thereby relieving the signor from liability under this signature. We are of the opinion that the form of Edrington’s signature on this note is not sufficient under this provision to relieve Edrington of liability.

Section 673.403 embodies an adaptation of the parol evidence rule to the special needs of negotiable writings. It is not a departure from the prior rule of agency that if an agent wishes to avoid personal liability on contracts executed on behalf of the principal, he must clearly indicate this understanding of the parties in the terms of the contract or in the form of his execution of the contract. Compare 1 Fla.Jur. Agency § 31 with Betz v. Bank of Miami Beach, 95 So.2d 891, 894 (Fla.1957). Nor does this statute change the rule of Spofford v. Hanna, 102 Fla. 261, 135 So. 536 (1931), that where there is ambiguity whether an agent signed in a representative capacity or in an individual capacity, the construction most against the person signing should prevail.

Under our negotiable instruments statute, if the face of the note unambiguously reflects the understanding of the parties that the agent not be bound on the instrument, the agent is free from personal liability. Section 673.403(3), Florida Statutes (1975). Conversely, if the note unambiguously establishes the understanding of the parties that the agent be personally liable, the agent is bound by the terms of the instrument. However, under the formula in Subsection (2)(b) of Section 673.403, if the form of the agent’s signature is such that reasonable persons examining the face of the instrument could arrive at different conclusions as to whether the parties intended the agent to be bound, then the agent will be bound “except as otherwise established between the immediate parties.” This presumptive construction against the agent whose signature appears on the note furthers the policy of the Uniform Commercial Code to promote certainty and definiteness in commercial paper. To avoid the construction, the agent must sign in a manner which tells everyone that the agent is signing, or has signed, as an agent only. This makes commercial paper easier to read and eliminates technical objections by prospective takers of the paper, thereby enhancing negotiability. Where this ambiguity exists on the face of the note, parol evidence is admissible in litigation between the original parties to the note to establish the understanding of the parties at the time the note was executed. Speer v. Friedland, 276 So.2d 84 (Fla. 2d DCA 1973); Dynamic Homes, Inc. v. Rogers, 331 So.2d 326 (Fla. 4th DCA 1976).

Subsection (3) of Section 673.403 provides one formula for the signature of an agent on behalf of his principal under which the agent cannot be found to be personally obligated. This formula requires 1) that the represented organization be named; 2) that the agent sign his name and office; and 3) that the name of the principal and signature and office of the agent be in reference to each other so that reasonable men dealing with the instrument would understand from the face of the note that the agent’s signature was in a representative capacity only, and not in an individual capacity [hence the requirement of Subsection (3) that the principal’s name be “preceded or followed” by the name and office of the agent].

Edrington did not sign the note in a manner which clearly shows to those dealing with the note that he was acting as a representative only, and not as an individual. Not only has Edrington failed to sign the note “Walton Drugs, Inc., by Bob Edrington, President,” as envisioned by the Uniform Commercial Code as “the unambiguous way to make the representation clear,” but also there is no logical reference between Edrington’s signature and the identification of Walton Drugs, Inc. Had the note not identified Walton Drugs, Inc., Edrington’s signature undoubtedly would have resulted in his being personally liable, “except as otherwise established by the immediate parties.” Section 673.403(2)(b), Florida Statutes (1975); Paragraph 3, Official Comment, U.C.C. § 3-403 (amended 1966) [see illustration (d) and accompanying comment] quoted in part in Dynamic Homes, Inc. v. Rogers, supra. We see no reason to vary this result merely because the name of the principal appears somewhere on the note but appears to have no intended effect upon the agent’s signature which, standing alone, would subject the agent to personal liability. The use of “and/or” in the identification of the makers destroyed any effect which the naming of the principal would have had as a limitation of the agent’s capacity (especially where, as here, the agent signed on the line reserved for his signature as an individual). Edring-ton not having availed himself of the opportunity expressed in Section 673.403 to escape personal liability, we feel it clear that he may be bound individually as a maker. Betz v. Bank of Miami Beach, supra. As noted in Betz:

“The result of this decision may be considered to be harsh. Yet in view of the importance of negotiable instruments in business, banking and finance, the need for certainty and stability in the meaning of what appears on the face of such instruments and in view of what we believe the intention and meaning of the pertinent sections of the [negotiable instruments statute] to be we believe the rule we have adopted to be the better view. We believe this rule will cause less harm to commerce and result in less litigation than if we adopted the opposite view.” Betz v. Bank of Miami Beach, supra, at 894.

The complaint stated a cause of action against Edrington individually. Falsten Realty Co. v. Kirksey, 103 Fla. 225, 137 So. 267 (1931). The trial court’s order dismissing Edrington from the suit was reversible error. The order must be, and is hereby, reversed and the cause remanded for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.

      . Annot. 82 A.L.R.2d 424 (1962) contains illustrations and discussion of some of the many permutations of agents’ signatures. None of these illustrations fits the instant case. Research has not disclosed a similar case elsewhere.

      . See the discussion of “descriptio personae” in Manufacturer’s Leas., Ltd. v. Florida Dev. & Att., Inc., 330 So.2d 171 (Fla. 4th DCA 1976).

      .The significance of the use of “we promise to pay . .” varies from case to case, but in the instant case it attains greater significance since the typewritten identification of the makers indicates that Edrington could have been expected to sign (in his individual capacity) in addition to, and as a co-maker with, Walton Drugs, Inc. E. g., Norman v. Beling, 33 N.J. 237, 163 A.2d 129 (1960).

      . These policies and intended effects are discussed in J. White and R. Summers, Uniform Commercial Code § 13 — 4 (West Publishing Co., 1972); 2 Anderson, Uniform Commercial Code § 403:7. The latter work urges:
      “It should therefore be held that unless a signing ‘clearly’ shows that the signer is acting in a representative capacity and has brought himself within the scope of Code § 3-403, that he is individually bound.” (at p. 913-914)

        See also Betz v. Bank of Miami Beach, supra, at 892.

      . One treatise refers to three similar requirements for an agent’s signature to avoid personal liability on a note executed on behalf of a principal as “three imperatives.” White and Summers, Uniform Commercial Code, § 13-5.
      The case of Southern Oxygen Supply Company v. Goliam, 230 Ga. 405, 197 S.E.2d 374 (1973) indicates the problems which may arise where the corporation is not named immediately preceding or following the signature of the agent and notation of his office.

      . Paragraph 3, Official Comments, U.C.C. § 3-403 (amended 1966).

      . The cases discussed in 113 A.L.R. 1364 at 1372 to 1374 (1938) illustrate the confusion which may arise even where the corporation is named elsewhere in the note.


text:
    In re ESTATE of William Day HIXON, Deceased.
    No. 77-1072.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1978.
    Rehearing Denied Feb. 28, 1978.

      Charles R. Holley, Naples, for appellants.
    Richard J. Aaron of Schryver, Hagaman, Goodlette & Aaron, Naples, for appellee.
   PER CURIAM.

This is an appeal from a dower judgment against the estate of William Day Hixon. Appellants, decedent’s children by a former marriage, and appellee, decedent’s widow, have all assigned error in this court. We have considered each point which they have raised and believe some to be of merit.

Prior to the hearing on assignment of dower, the court awarded a family allowance of $400 to appellee and $3800 to appellants. Subsequently in assigning dower, the court subtracted $400 from appellee’s dower share. Both sides contend that this calculation was wrong, citing In re Gilbert’s Estate, 160 Fla. 528, 36 So.2d 213 (Fla.1948). However, they differ as to the result for which Gilbert’s calls. Appellee claims that the court should have subtracted $400.00 from the estate before it calculated dower while appellants contend that the court should have subtracted $4,200.00.

While we find that Gilbert contains some conflicting language on this point, we believe that the Gilbert court intended that the entire family allowance should always be subtracted from the decedent’s estate. As the court said,

“Any allowances pursuant to Section 733.20, supra, were independent of dower. After payment of such alimony allowances they should be deducted from the corpus out of which her dower is due and dower calculated, using the remainder after the deduction as a basis.” 36 So.2d at 216 (emphasis supplied)

Consequently we hold that the trial court should have deducted $4,200.00 from decedent’s estate before it calculated the dower share.

Appellee contends in her cross-appeal that the court erred in reducing her dower share by one-third of the life income taxes of the decedent. After examining the statute which governed the assignment of dower in the case, we find that we must agree. Section 731.34, Florida Statutes (1973), reads in part, “[I]n all cases the dower shall be free from liability for all debts of the decedent and all costs, charges and expenses of administration . . .” We believe that the income taxes of decedent which accrued during his lifetime are clearly personal obligations and therefore must be considered as his debts. Consequently we reverse the judgment of the trial court to the extent that it reduces appellee’s dower by decedent’s life income taxes.

The final point which we believe has merit concerns that part of the judgment in which the court ruled that appellee’s dower rights were diminished to the extent of the liens on the decedent’s law library and Mercedes-Benz. Appellee contends that her dower rights attached to those items of personal property without consideration of the liens. We believe that she is correct.

As we have already noted, Section 731.34, Florida Statutes (1973), exempts a widow’s dower share from all debts of decedent. The liens on the personal property in this case represented security for the decedent’s debts, but the responsibility for payment of those debts falls on the estate. Murphy v. Murphy, 125 Fla. 885, 170 So. 856 (1936); Rubin v. Rubin’s Estate, 144 So.2d 527 (Fla. 3d DCA 1962); Cf. Payne’s Estate, 83 So.2d 109 (Fla.1955).

We realize that our conclusion may conflict with an opinion of one of our sister courts. In Morton v. Morton, 297 So.2d 79 (Fla. 3d DCA 1974), the court held that dower rights attached only to the equity in personal property which decedent held at the time of his death. In so holding, the court apparently relied on the language of a 1963 amendment to Section 731.34 which reads:

“[Njothing herein contained shall be construed as exempting any personal property from liability for any debt secured by written assignment, pledge, mortgage or other security instrument . . . .”

We do not believe, however, that the legislature intended this amendment to change the result of Murphy v. Murphy, supra, and affect the dower rights of the widow as against the estate. Rather, we think that the amendment was intended only to protect the lienholder. In the event the property were foreclosed, the widow would be entitled to recoup from other assets of the estate. See, Florida Probate Practice, Continuing Legal Education, § 7.37 (1973).

We note that appellee also requests relief from that part of the judgment which holds that the lands allocated to dower must bear their share of ad valorem taxes. However, we find that the trial court was correct in its ruling. In re Ratliff's Estate, 137 Fla. 229, 188 So. 128 (1939).

In summary, then, we reverse the judgment of the trial court insofar as it 1) subtracts the $400.00 family allowance from the dower share, 2) burdens the dower share with a portion of the decedent’s life income taxes, and 3) takes into consideration the liens in determining the dower share in the decedent’s law library and Mercedes-Benz. We affirm all other parts of the judgment and remand the case to the trial court for proceedings consistent with this opinion.

HOBSON, Acting C. J., and GRIMES and RYDER, JJ., concur.

      . The decedent’s death and the widow’s election to take dower occurred before the effective date of the new probate code.


author: RYDER, Judge.

text:
    Max LANDER, Appellant, v. CENTRAL PLAZA BANK AND TRUST COMPANY, as Executor of the Estate of Marie E. Chadwick, Deceased, Appellee.
    No. 77-1160.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1978.
    Rehearing Denied March 6, 1978.
    Gerard J. O’Brien, Jr., St. Petersburg, for appellant.
    Charles S. Carrere of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Peters-burg, for appellee.
   RYDER, Judge.

On January 10, 1974 the appellant, Max Lander [hereinafter “Lander”], filed an action against the estate of Marie E. Chadwick and its executor. In Count I of this action, Lander attempted to recover certain shares of stock allegedly given to him by Mrs. Chadwick prior to her death and in Count II, Lander sought reimbursement for sums of money allegedly extended by Lander on behalf of Mrs. Chadwick and compensation for the value of nursing services allegedly rendered by him to her. The lower court directed a verdict for defendant as to Count I and the jury returned a verdict on behalf of Lander on Count II for $3,000.00. Thereafter, Lander appealed the action of the trial court below in directing the verdict as to Count I.

Lander and Mrs. Chadwick were married in June of 1967 but divorced in January of 1971. However, approximately thirty days thereafter, Mrs. Chadwick returned to Lander’s home in February of 1971 and lived under his roof until she died some two years and three months later in May of 1973.

During the probate of Mrs. Chadwick’s estate, the executor demanded that Lander return certain specified stocks which, although under protest, he did contending the specified stocks were gifts made by Mrs. Chadwick to him on or about February 2, 1973 prior to her death.

As negotiations for the return of the stocks were unsuccessful, Lander filed suit as related above.

During the May 1977 trial, Lander’s attorney attempted to introduce into evidence an exhibit marked No. 19. This exhibit was a half page of paper, allegedly a partial dividend record which, in turn, allegedly contains dates and amounts of dividends supposedly paid to Mrs. Chadwick on stocks; but more importantly to Lander, it contains a notation, again allegedly, in Mrs. Chadwick’s handwriting, “Stocks gave to Max Feb. 1973.” Exhibit 19 was found in 1975 by Lander in a drawer of a table previously utilized by Mrs. Chadwick.

Lander, in his effort to introduce Exhibit No. 19, was attempting to show Mrs. Chadwick had, in fact, made an inter vivos gift of the stock to him in February of 1973 as he had alleged, and that the notation, “Stocks gave to Max Feb. 1973" definitely showed donative intent. Although Lander’s attorney proffered that he had a handwriting expert who would testify that the entries and notations on the paper were written in the handwriting of Mrs. Chadwick, the trial judge excluded Exhibit No. 19 as hearsay and directed a verdict as to Count I against Lander. This appeal ensued.

We feel that the trial court erred in not allowing Lander to proceed with his attempt to adequately identify Exhibit No. 19. We believe First Gulf Beach Bank and Trust Co. v. Grubaugh, 330 So.2d 205 (Fla. 2nd DCA 1976), is inapplicable under these circumstances, but that Clark v. Grimsley, 270 So.2d 53 (Fla. 1st DCA 1972) more closely applies. The testimony of the handwriting expert, a disinterested witness, was crucial to Lander’s efforts to attempt to identify this document. If the handwriting expert could have sufficiently identified the handwriting of Mrs. Chadwick on this document, it would have given Lander an opportunity to attempt to further identify and connect up the exhibit by the testimony perhaps of a stock broker or other expert who might be in a position to testify that the stocks subject of this suit earned the exact dividends as purportedly set forth on the paper to the shares of stock to which it allegedly relates. Properly identified and connected to the stocks which Lander contends were a gift to him, Exhibit 19 certainly tends to corroborate the claim of dona-tive intent on the part of Mrs. Chadwick and thus should be a matter to be weighed by the jury. Of course, we do not say Lander will eventually be successful in this quest but he should have been given the opportunity to try to do so. If Lander could present competent testimony connecting the document to his allegations, then the jury should be given an opportunity to decide the issue.

We reverse and remand for further proceedings not inconsistent with this opinion.

HOBSON, Acting C. J., and SCHEB, J., concur.

      . The record on appeal does not adequately reflect the trial judge’s award of a directed verdict on Count I, but the parties agreed during oral argument to that fact.


text:
    Raymond HOWE et al., Appellants, v. Dorothy E. HOWE, as personal representative of the Estate of Howard Howe, Deceased, Appellee.
    No. GG-42.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    Rehearing Denied March 3, 1978.
    Robert J. Gorman of Brennan, McAliley, Albury & Hayskar, Fort Pierce, for appellants.
    William E. Sherman of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellee.
   PER CURIAM.

Although the order for sale entered April 4,1977, appears not to have been predicated on an adjudication of the interests of the estate in the property that was subject to the order, the record contains indications of consent by the parties to the court’s exercise of jurisdiction over the property for certain purposes, even absent such an adjudication. The record otherwise provides an unsatisfactory basis for determination of any error in the order from which the appeal was taken. Without prejudice to proceedings for a decisive determination of the estate’s interest in the property, or for reconsideration of the appealed order in the light of subsequent events, the order is

AFFIRMED. See Fla.R.P. & G.P. 5.100; Baker v. Baker, 327 So.2d 205 (Fla.1976).

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: MELVIN, Judge.

text:
    Robert H. MATTHEWS, as guardian of the Person and Property of Dale Harler, Jr., an incompetent, Appellant, v. G. S. P. CORPORATION et al., Appellees.
    No. GG-179.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    Rehearing Denied March 3, 1978.
    Thorwald J. Husfeld of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, Karl O. Koepke of Whitaker, Koepke & Associates, Orlando, for appellant.
    W. Thomas Lovett, Robert L. Young, Orlando, Kim C. Hammond, Robert K. Rouse, Jr., C. Anthony Schoder, Daytona Beach, and Victor E. Raymos, Jacksonville, for ap-pellees.
   MELVIN, Judge.

Appellant-plaintiff appeals from a summary final judgment entered upon his fifth amended complaint seeking to state a cause of action against defendant-Geiger Corporation.

Dale Harler, Jr. was employed by the Geiger Corporation, and the Royal Globe Insurance Company was the carrier for such employer. Harler was injured while working on a high-rise platform incident to the construction of a condominium. The plaintiff alleged that in connection with the maintenance and inspection of the high-rise platform from which he fell, the Geiger Corporation had been guilty of willful and wanton negligence in failing to provide a safe place for him to work and in failing to observe obvious defects in the steel cables that supported the platform. It is alleged that because one of the steel cables deteriorated, over a period of time, and broke, Harler fell to the ground causing him to sustain substantial physical injury. Nowhere in the pleading does Harler allege that his employer intentionally inflicted upon him an injury.

Following the injury sustained by Harler, he filed his claim for benefits under Florida Workmen’s Compensation Act, Chapter 440, Florida Statutes, alleging his right for recovery of benefits for injuries alleged to have been sustained by him as a result of an accident happening during the course of his employment. Compensation pursuant to Florida law was paid to the claimant by the insurance carrier.

Plaintiff urges that because of the alleged willful and wanton negligence of the employer in providing an unsafe place for the claimant to work at such a high-level area and failure to provide inspection of and correction of the deterioration of the steel cables, he should be permitted to recover damages for such alleged tort, such damages to be subject only to offset in the amount of workmen’s compensation funds he has received.

An employee may not elect to declare his injury to have been an accident occurring in the course of his employment and, thereafter, repudiate such position by alleging that the place and conditions of his employment were so dangerous that the injury was not in fact an accident. Such position is contrary to the conclusiveness of remedy doctrine embodied in the workmen’s compensation system. The provisions of the act may not be accepted and then repudiated by the employee. Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972).

Florida Workmen’s Compensation Act is an enactment that assures to every employee the full benefits provided therein regardless of whether the employer or employee is guilty of negligence in bringing about the accident causing the injury. The act further reflects the policy of the state to designate and define for the employer the responsibilities that will come to rest upon its shoulders to thus mark the limit of its liability.

Plaintiff, having established that he was entitled to the benefits of Chapter 440 because he received an injury arising out of and in the course of his employment, and that he did receive benefits as provided by such law, may not now be permitted to claim further damages upon his allegation that his injury, in fact, was not an accident within the contemplation of the law.

The final summary judgment appealed from is

AFFIRMED.

SMITH, Acting C. J., and ERVIN, J., concur.


author: ALDERMAN, Chief Judge.

text:
    STATE of Florida, Appellant, v. Jackie STEVENS, a/k/a Jackie Stephens, Bruce Wayne Mathews, a/k/a Bruce Wayne Matthews, and Curley Anderson, Appellees.
    No. 76-2263.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee and Marsha G. Madorsky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Henry Prettyman and Joseph S. Karp, Asst. Public Defenders, West Palm Beach, for appellees.
   ALDERMAN, Chief Judge.

This appeal stems from an order of the trial court granting the motion of the defendants to suppress tangible evidence. At issue is the authority of a police officer under the Florida Stop and Frisk Law to stop a motor vehicle and detain its occupants, to arrest the occupants after a brief investigation, and to seize evidence which was in plain view. We reverse.

The evidence came into the hands of law enforcement authorities in the following manner: Officer Ludwig of the St. Cloud police department was on routine patrol on a rainy Sunday night. At about eleven o’clock he saw a pickup truck pulling away from the vicinity of a city supply and equipment yard. He first observed the truck on a dirt road which skirted the enclosure. The patrol car’s spotlight showed a set of fresh tire tracks leading from the direction of the supply yard’s gateway and continuing along the route taken by the truck. There were no other vehicles in the vicinity, and Officer Ludwig testified that it was unusual to see a truck there at that hour of the night. Furthermore, he knew that wire had been stolen from the same yard on a weekend about a month before.

He followed the truck. Its tailgate was down, and in the illumination of his own headlights the policeman could see coils of wire laid haphazardly in the bed of the truck, partially covered by a piece of cloth. The officer was struck by the fact that the vehicle was weighted down so heavily in the rear that its front end was sticking up in the air at a peculiar angle.

Officer Ludwig stopped the truck after following it a short distance and found the three defendants in the cab. He asked the driver for identification and detained the three men while waiting for a backup unit to arrive. Without touching the cloth which partially covered the truck’s load, the officer could see coils of copper wire, wet and muddy, much of it with its insulation burned off. Ludwig subsequently moved the cloth so that he could judge the full quantity of the wire.

Officer Ernst arrived in his patrol car as backup unit within ten or fifteen minutes of the stopping of the truck. The defendants, one of whom was barefoot, and all of whom were rainsoaked and sandy, were locked in the back seat of Officer Ernst’s patrol car while Officer Ludwig drove to the gateway of the city yard to make a quick inspection. The three suspects were not told that they were under arrest until Officer Ludwig told Officer Ernest by radio that he had found many signs suggesting their involvement in theft of wire from city property. Tire tracks, still fresh despite the rain, showed that a vehicle had been backed up to the entrance. There were recent footprints on both sides of the fence, and through a gap in the loosely chained gates. The ground bore imprints made by wire coils. In addition, Officer Ludwig found a pair of tennis shoes which he took back with him to Officer Ernst’s waiting patrol car, where the barefoot suspect admitted that they belonged to him.

The trial court’s order granting the motion of the defendants to suppress tangible evidence contained the following language:

[W]hen Officer Ludwig . stopped the vehicle driven by one of the defendants he had not observed the vehicle violating any traffic regulations and did not have probable cause to believe the defendants, or either of them, had committed a felony. To quote the officer he stopped the vehicle “for suspicion of theft” .... [T]he officer . was without probable cause to stop the defendants and place them under arrest and could not detain the defendants until he found probable cause after an extensive investigation.

We disagree with the court’s reasoning.

The right of law enforcement officers to stop and temporarily detain individuals under certain circumstances is specifically granted by the Florida Stop and Frisk Law, Section 901.151, Florida Statutes (1976). In evaluating Officer Ludwig’s reasons for stopping the pickup truck, the trial court applied too rigorous a standard. State v. Bastardo, 347 So.2d 463 (Fla.2d DCA 1977). Circumstances can “reasonably indicate” that a person “has committed, is committing, or is about to commit” a violation of criminal laws or ordinances without necessarily indicating that high probability of guilt which is implied by the term “probable cause.” State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). To justify temporary detention, only “founded suspicion” in the mind of the detaining officer is required. Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974); State v. Ebert, 251 So.2d 38 (Fla.2d DCA 1971). A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect’s possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

Merely driving around town in an out-of-state van, or walking along a street late at night, or looking or pointing at policemen, or pulling out of a parking lot when the police come into view, with nothing more, is insufficient to justify an individual’s detention. Coladonato v. State, 348 So.2d 326 (Fla.1977); Lower v. State, 348 So.2d 410 (Fla.2d DCA 1977); Stanley v. State, 327 So.2d 243 (Fla.2d DCA 1976); Vollmer v. State, 337 So.2d 1024 (Fla.2d DCA 1976). In the present case, however, there were numerous factors which, when interpreted in the light of Officer Ludwig’s knowledge of the area and of a previous crime, gave foundation to his suspicion: It was Sunday, and late at night — an unlikely time for movement of legitimate traffic out of the city equipment yard. The truck was loaded in a disorderly manner with materials of a kind that had recently been stolen from the same yard on another weekend. The truck was overloaded so that its front end stuck up in the air. To any reasonable man in Officer Ludwig’s position the location of the truck, the tire tracks leading from the city yard, and the haphazardly located cargo of wire must inevitably have raised a founded suspicion of theft.

The stopping of the truck and the temporary detention of the suspects was justified, and they were detained prior to their arrest no longer than was reasonably necessary to investigate the situation and to establish that there was probable cause for their arrest (in this case a period of thirty minutes or less). State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).

As for the question of search, we hold that there was no search in connection with the tangible evidence which the appel-lees sought to suppress: Officer Ludwig could see the copper wire in plain view from a place where he had a legal right to be. Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA, 1977); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Miller, 267 So.2d 352 (Fla. 4th DCA 1972). The evidence should not have been suppressed.

The Public Defender has filed a suggestion of death of Appellee-Jackie Stevens, a/k/a Jackie Stephens. As a result the State’s appeal as to this appellee has been dismissed. As to the remaining appellees, the case is Reversed and Remanded.

CROSS and MOORE, JJ., concur.

      . The paragraphs of Section 901.151 most pertinent to this case are:
      (2)Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      (3) No person shall be temporarily detained under the provisions of subsection (2) of this section longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.
      (4) If at any time after the onset of the temporary detention authorized by subsection (2) of this section, probable cause for arrest of person shall appear, the person shall be arrested. If, after an inquiry into the circumstances which prompted the temporary detention, no probable cause for the arrest of the person shall appear, he shall be released.


text:
    Robert E. SPOONER, Appellant, v. STATE of Florida, Appellee.
    No. 76-2464.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Richard L. Jorandby, Public Defender, and Stuart A. Young, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgments of conviction are affirmed, but the sentences are vacated and the case remanded for resentencing with directions that the trial court disclose to the defendant, a reasonable time prior to sentencing, any factual material contained in the confidential portion of the presentence investigation which is not found in the non-confidential portion. Campbell v. State, 342 So.2d 1010 (Fla.4th DCA 1977); Bronson v. State, 345 So.2d 872 (Fla.2d DCA 1977); Cunningham v. State, 349 So.2d 702 (Fla.4th DCA 1977).

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Robert Otto JOENSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2560.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Nikki Ann Clark, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond, Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Price v. State, 333 So.2d 84 (Fla. 1st DCA 1976).

CROSS, DAUKSCH, and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Edward T. MANOFSKY, Appellant, v. STATE of Florida, Appellee.
    No. 76-2636.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.

      Alan E. Weinstein, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This case comes before us for review of a conviction of aggravated assault. There are multiple points on appeal but we confine ourselves to a discussion of the law and facts surrounding three of same which are reversible error.

The appellant owed $400 to one of two brothers who, over an extended period, both made strenuous efforts to collect the debt. Only two days before the incident now before us, the victim (one of the brothers) had struck the defendant and broken his nose. Both brothers returned on the day in question and this time the nose breaker brother stayed outside in the car while the other went to appellant’s door where the appellant shot him. Thereafter, the appellant also fired the three shots, which gave rise to this charge, at the nose breaking brother still sitting outside in the car.

During the trial the appellant attempted to introduce evidence that the brother, shot at the door, had some nine months earlier, while attempting to collect the same debt, threatened to shoot the accused and had waved a gun. The court refused to allow this testimony on the theory that the death threat did not come from the victim in this case (the brother in the car) but came from his opposite number shot at the door. We feel the trial judge was in error.

Although nine months old, death threats with flourished pistols will remain indelibly stamped on the mind. Moreover, the actions of the two brothers were efforts in concert to further a common scheme showing great continuing animus by both toward the appellant. Such would certainly bear on the issue of self defense from either brother. See 6A C.J.S. Assault & Battery § 118. Threats by a relative of the victim are properly admissible under such circumstances. See 6 Am.Jur.2d, Assault and Battery § 100. Moreover, even if not admissible on the issue of self defense, the testimony “should have been permitted to attempt to demonstrate the bias and hostility . against the appellant.” Lewis v. State, 335 So.2d 336, 339 (Fla.2d DCA 1976).

Another error occurred when the prosecutor made the classic mistake of referring to the defendant’s fifth amendment rights by telling the jury:

“Now the testimony may be different if the (appellant) testifies.”

See Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977).

Finally, the defense, during cross examination of the state’s chief witness, asked him,

Q. Have you ever been convicted of a crime?

The court sustained an objection to this, why we know not, because both lawyers approached the bench out of earshot of the reporter. We can think of no reason, apparent from the record, why this was not permissible attempt at impeachment. As this court said in Irvin v. State, 324 So.2d 684, 686 (Fla. 4th DCA 1976),

“The proper procedural approach is simply to ask the witness the straightforward question as to whether he had ever been convicted of a crime.”

Such is exactly what was asked in this case.

REVERSED AND REMANDED for a new trial.

CROSS and MOORE, JJ., concur.

      . This particular shooting was not the subject of this trial or appeal.


text:
    Trazysie ENSTROM, Appellant, v. Liisa A. DIXON, as Personal Representative of the Estate of Elin M. Enstrom, Deceased, Appellee.
    No. 76-2671.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Guy C. Hill, West Palm Beach, for appellant.
    Robert E. Hathaway, West Palm Beach, for appellee.
   PER CURIAM.

Plaintiff appeals an order granting Defendant’s motion to dismiss her amended complaint with prejudice.

In a four count amended complaint Plaintiff alleges that she housed and cared for Defendant’s decedent from 1967 to 1975 and is entitled to reimbursement for expenses incurred therein under theories of breach of contract, conversion, and several equitable theories. Although the amended complaint could have been more artfully drafted, we agree that Plaintiff should have been allowed another opportunity to amend so as to attempt to state a cause of action.

It is the policy in this State to freely allow amendments to pleadings in order that causes may be tried on their merits and justice may be achieved. In exercising the discretion inherent in the trial court to allow or disallow amendments, all doubts should be resolved in favor of the former unless the privilege be abused. David Miller Distributing v. Fla. Nat. Bank, 342 So.2d 856 (Fla. 1st DCA 1977). We find no such abuse here. Plaintiff should be allowed an opportunity to amend unless it is apparent that the pleading cannot be amended to state a cause of action. Hansen v. Central Adjustment Bureau, Inc., 348 So.2d 608 (Fla. 4th DCA 1977).

The defendant relies heavily on First Gulf Beach Bank & Trust Co. v. Grubaugh, 330 So.2d 205 (Fla. 2nd DCA 1976) which dealt with contracts to make a will and the effect of Fla.Stat. 731.051. Clearly, that decision has no bearing on the theories attempted to be raised in Plaintiff’s amended complaint.

REVERSED AND REMANDED.

ALDERMAN, C. J., and CROSS and MOORE, JJ., concur.


author: DOWNEY, Judge.

text:
    DOWD SHIPPING, INC., a Foreign Corporation, Appellant, v. Bud LEE and Elizabeth Lee, his wife, Appellees.
    No. 77-1839.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Jonathan D. Commander, Palm Beach, for appellant.
    David Roth, of Cone, Owen, Wagner, Nu-gent, Johnson & McKeown, P. A., West Palm Beach, for appellees.
   DOWNEY, Judge.

A deputy sheriff went to 4 El Bravo Way in Palm Beach to effect service of original process upon the appellees, Bud Lee and Elizabeth Lee, his wife, in a suit brought by appellant seeking an injunction and the recovery of damages for nonpayment of rent and ad valorem taxes.

The sheriff approached the residence located at the designated address but was unable to gain access to the house because an outer gate was locked. The deputy called on the house telephone and appellee, Elizabeth Lee, answered and identified herself. The deputy identified himself and advised Mrs. Lee he had copies of a Notice of Removal of Tenant and Summons for her and her husband. Mrs. Lee responded that her husband was out of town and refused to accept service. The deputy then advised Mrs. Lee that he considered her served and would leave all copies of the papers attached to the gate.

Appellees moved to dismiss the complaint for insufficiency of service of process and the trial court dismissed the cause as to the appellee, Bud Lee. However, in its order the trial court specifically stated that it did not determine whether the residence in question was the “place of abode of both defendants”.

It is our opinion that if this residence in question was the usual place of abode of Mr. Lee and if Mrs. Lee was over the age of fifteen years, the substituted service of process on Mr. Lee was valid. Although the sheriff improperly described the relief sought in the complaint he advised Mrs. Lee of his authority and purpose and told her the contents of the papers he wished to deliver, i. e., the summons and complaint. Had Mrs. Lee come to the door and accepted the papers surely she could not have attacked the service. Nor could Mr. Lee have attacked the substituted service on him if this was his usual place of abode and his wife was over fifteen years old. The purpose of service of process was accomplished here. Haney v. Olin Corporation, 245 So.2d 671 (Fla. 4th DCA 1971). The defect noted in the substituted service in the “Haney wife case,” as the trial judge here aptly described it, is not present in this case. Nor do we think Liberman v. Commercial National Bank of Broward County, 256 So.2d 63 (Fla. 4th DCA 1971) controls this case because here the deputy complied with the statutory requirements for service.

In view of the foregoing the order appealed from is reversed and the cause is remanded to the trial court to make a determination whether the residence in question was the usual place of abode of appel-lee, Bud Lee, and whether Mrs. Lee was over fifteen years of age. If the answer to both questions is affirmative then the trial court is directed to uphold the service of process on appellee, Bud Lee. If the answer to either question is negative then the trial court should enter a new order granting the motion to dismiss as to appellee, Bud Lee.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS and DAUKSCH, JJ., concur.

      . This case involved Mr. Haney.

      . Olin Corporation v. Haney, 245 So.2d 669 (Fla. 4th DCA 1971) involved Mrs. Haney.


text:
    K. Gordon MURRAY, Appellant, v. Chris ROBINSON, an Individual, d/b/a Captive Productions, Appellee.
    No. 77-2067.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    John Militana of- Militana, Militana & Militana, Miami, for appellant.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant’s brief states: “This is an interlocutory appeal from an Order denying Defendant’s Motion to Dismiss Plaintiff’s Complaint for damages resulting from an alleged breach of an oral agreement for professional services surrounding production, direction and acting of a certain motion picture.” Obviously the cause of action described is one formerly cognizable at law so that an interlocutory appeal is not appropriate to review an order denying appellant’s motion to dismiss the complaint. We must therefore dismiss the appeal for lack of jurisdiction.

In passing we note that if we had jurisdiction we would affirm the order appealed from because the record presented by the appellant is totally deficient. Appellant has presented no record and no appendix. We have neither the complaint in question nor the appellant’s motion to dismiss which was denied without comment by the trial court.

APPEAL DISMISSED.

CROSS and LETTS, JJ., concur.

      . We mention this solely because in dismissing the cause for lack of jurisdiction we have to rely solely on appellant’s designation of the nature of the cause of action pleaded.


text:
    Jimmy Lee SYKES, Petitioner, v. Louie L. WAINWRIGHT, Secretary of Department of Offender Rehabilitation, Respondent.
    No. 77-2286.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, App. Div., West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for writ of habeas corpus DENIED.

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Dorothy A. CHRISTIANSEN, Appellant, v. Lyle C. CHRISTIANSEN, Appellee.
    No. 77-2387.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.

      Frank R. S. Fabre, Orlando, for appellant.
    Mack N. Cleveland, Jr., Sanford, for ap-pellee.
   DOWNEY, Judge.

On October 6 and 7, 1977, appellant filed a motion and an amended motion for temporary relief, requesting temporary alimony, attorneys’ fees and suit money. On October 14, 1977, the trial court denied the motion without a hearing. That order is the subject of this interlocutory appeal.

In the order denying the motion for temporary relief the court pointed out that the motion was accompanied by a large quantity of exhibits some of which were irrelevant. The court also noted that appellant had already had several other temporary hearings before the court not involving alimony, attorneys’ fees or suit money.

We are entirely sympathetic with trial judges, often laboring as they do under impossible docket conditions. And we agree that litigants should strive to economize on court time by requesting as few temporary hearings as possible commensurate with the requirements of their cases. However, there is no prohibition against more than one temporary hearing in a domestic relations case and it often is the case that some immediate temporary relief pending the litigation is required before the evidence is available to consider financial allowances.

We find nothing in this record (and unfortunately appellee has not favored us with a brief in support of the trial court’s order) which would preclude appellant from at least having a hearing on her application for funds with which to carry on the litigation and sustain herself until final hearing.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to allow appellant a hearing on her motion for temporary alimony, attorneys’ fees and suit money.

REVERSED AND REMANDED, with directions.

CROSS and ANSTEAD, JJ., concur.


author: GRIMES, Judge.

text:
    Lisa Lawrence BUSOT, Appellant, v. Florencio Otto BUSOT, Appellee.
    No. 77-627.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1978.

      Richard J. Aaron of Schryver, Hagaman & Aaron, Chartered, Naples, for appellant.
    Archie M. Odom of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appel-lee.
   GRIMES, Judge.

This is an appeal from a determination that an ex-wife was not entitled to garnish her former husband’s wages to collect two judgments for the support of herself and the children of the parties.

The history of this case prior to the garnishment proceedings is amply set out in our opinion in Busot v. Busot, 338 So.2d 1332 (Fla. 2d DCA 1976). In that decision we held that the separation agreement executed in Pennsylvania under which the appellant sought to recover a judgment for past-due support payments for her and the children was valid, and we reinstated the final judgment dated July 17, 1975, for $20,-200 which the court below had set aside on rehearing. Appellant then caused a writ of garnishment to collect the $20,200 to be served on appellee’s employer. Appellant also sought to reduce to judgment the sum of $5,850 owed to her from the date of the erroneous trial court ruling on the validity of the separation agreement to the date of the judgment was reinstated. A judgment for that amount was granted to appellant on March 7, 1977, but the writ of garnishment served on appellee’s employer was dissolved because appellee had remarried and was now the head of a family. See Section 222.11, Florida Statutes (1975). The court held that neither the July 17, 1975, judgment for $20,200 nor the March 7, 1977, judgment for $5,850 was enforceable by a writ of garnishment because they were not of the character of orders described in Section 61.12, Florida Statutes (1975).

Appellant argues that the judgment of July 17, 1975, is for child support and alimony so that garnishment is a remedy available to her under the statute. However, that judgment was not based on an action to enforce a decree or order of the court in a proceeding for dissolution, alimony or child support. The separation agreement had not been incorporated into the Pennsylvania divorce decree. The lawsuit upon which the judgment was based was an ex contractu action at law; the appellant merely sought to enforce the terms of the contract which the appellee had breached. The appellee, therefore, stands as any other judgment debtor; as the head of a household his wages cannot be garnished by a judgment creditor. Section 222.11, Florida Statutes (1975). Healey v. Toolan, 227 So.2d 55 (Fla. 4th DCA 1969).

The final judgment of March 7, 1977, for $5,850 may stand in a different light. Appellant argues that in the reinstated judgment of July 17, 1975, the court adopted and ratified the agreement between the parties and ordered the appellee to continue to make support payments under the terms of the agreement. Thus, appellant asserts that the judgment of March 7, 1977, for arrearages accruing from the date of the judgment of July 17, 1975, was a judgment of a court of this state for monies due on an order for child support and alimony which is collectible by a writ of garnishment pursuant to Section 61.12. On the other hand, the appellee contends that the court did not make the separation agreement a part of its order.

The final judgment of July 17, 1975, reads, in pertinent part, as follows:

4. The parties have agreed that relations between the father and the children shall be reestablished in a manner consistent with the best interest of the children, and such agreement is approved, ratified and adopted by this court, and made a part of this Final Judgment. Concurrently, the Defendant shall continue to make the support payments required by the separation agreement. The court specifically reserves jurisdiction to enforce the foregoing portion of this Order. (Emphasis added).

Admittedly, this paragraph is susceptible of more than one interpretation. It is not clear whether the court “approved, ratified and adopted” an agreement concerning the relations between the father and his children or whether the court “approved, ratified and adopted” the parties’ separation agreement. However, in view of the sentences emphasized above, we believe that the court intended to adopt and enforce the agreement for support of the wife and children. Therefore, the final judgment of March 7, 1977, was for monies due on a court order of the type described in Section 61.12, and the denial of appellant’s motion for the issuance of a writ of garnishment to enforce this judgment was in error.

We find no merit in appellee’s contention that arrearages of child support and alimony are not collectible by a writ of garnishment when such arrearages are reduced to final judgment. We agree with the majority position in Hall v. Air Force Finance Center, 344 So.2d 1340 (Fla. 1st DCA 1977), and hold that a final judgment for accrued child support and alimony due under a court order for the same is collectible by a writ of garnishment issued pursuant to Section 61.12. Accord, Clemons v. Morris, 350 So.2d 519 (Fla. 4th DCA 1977).

The order dissolving the writ of garnishment on the judgment of July 17, 1975, is affirmed. The order denying appellant’s motion for writ of garnishment to collect the March 7, 1977, judgment is reversed.

BOARDMAN, C. J., and RYDER, J., concur.

      . The amended final judgment which this court reversed had directed the appellee to pay the appellant $300 per month child support. These sums were paid pending the first appeal. The $5,850 results from the difference between this $300 per month and the monthly payment of $600 per month required by the reinstated judgment of July 17, 1975.

      . Section 61.12 provides in pertinent part:
      So much as the court orders of the money or other thing due to any person or public officer, state, or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support


text:
    STATE of Florida, Appellant, v. Carlie Nolan MANCIL, Jr., Appellee.
    No. 77-941.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    George L. Harrell, II, of Luckey & Harrell, LaBelle, for appellee.
   RYDER, Judge.

The state appeals an order mitigating appellee Mancil’s sentence. The state contends this order was illegal as it was entered after the expiration of the period of time prescribed in Fla.R.Crim.P. 3.800 within which a sentence may be reduced. We agree and reverse.

Maneil was originally tried and convicted of assault and battery and sentenced to one year in jail. This court affirmed the judgment and sentence on his direct appeal, Mancil v. State, 338 So.2d 848 (Fla. 2d DCA 1976); our mandate was received by the trial court on October 22, 1976. That same day Mancil filed a motion to mitigate his sentence, pursuant to Fla.R.Crim.P. 3.800. After a hearing on the motion, the trial judge entered an order on December 17, 1976 vacating the original sentence and setting a new sentencing hearing to be held in April, 1977 before the original trial judge. This was done over the state’s objection.

The state subsequently filed a petition for rehearing, which was granted. After hearing, the trial court concluded it had erred in its December 17, 1976 order. Accordingly, on May 16,1977, the court vacated its December 17, 1976 order and placed Mancil on probation for one year with certain special conditions. It is this May 16, 1977 order which the state here appeals.

Insofar as it purports to “reduce” Mancil’s sentence by placing him on probation, the May 16, 1977 order is illegal. Since the original sentence imposed was a legal sentence, the trial court had jurisdiction to reduce it for only sixty days following the mandate issued by this court upon affirmance of the judgment and sentence upon Mancil’s direct appeal. Fla.R.Crim.P. 3.800(b). The trial court must act on a motion to mitigate within the applicable time period prescribed in the rule, regardless of when the motion to mitigate is filed. State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977); Sayer v. State, 267 So.2d 42 (Fla. 4th DCA 1972). Moreover, even if the trial court had jurisdiction to reduce Mancil’s sentence, it exceeded its authority by placing him on probation since the granting of probation does not constitute the reduction of a sentence. Cuneo v. State, 335 So.2d 278 (Fla.1976); State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969), cert. denied, 229 So.2d 261 (Fla.1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970).

However, the May 16, 1977 order was valid insofar as it vacated the December 17, 1976 order because that order was also illegal. Although it was entered within the sixty-day period prescribed by Fla.R. Crim.P. 3.800; the trial court acted without authority when it vacated Mancil’s sentence. While the rule says a trial court may reduce a sentence, it does not say a court may vacate a sentence. State v. Evans, supra.

Accordingly, that portion of the order appealed which purports to reduce Mancil’s sentence by placing him on probation is quashed, and the cause is remanded with instructions to reinstate the original sentence.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: SCHEB, Acting Chief Judge.

text:
    OWEN INDUSTRIES, INC. and Ultraguard Corporation, Appellants, v. Joseph E. TAYLOR, Appellee.
    No. 77-1046.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1978.

      Christy F. Harris and William M. Midy-ette, III, Lakeland, for appellants.
    Philip 0. Allen of DeVane & Allen, Lake-land, for appellee.
   SCHEB, Acting Chief Judge.

Owen Industries and Ultraguard Corporation challenge a final judgment holding them liable for a breach by Lakeland Security Systems (LSS) of a contract between LSS and appellee Taylor. In awarding ap-pellee Taylor a judgment for $1,518.28, the trial court apparently concluded that certain allegedly false representations made to Taylor by LSS were authorized by appellants. Appellants contend LSS was without authority to make any representations on their behalf, hence they argue there was no legal basis for the judgment. We agree with appellants and reverse.

During 1974 David Bast and James Stevens formed Lakeland Security Systems for the purpose of selling and installing fire and burglar alarm systems in the Lakeland area. LSS purchased much of its inventory from David Cannon, a wholesale distributor for appellants in Tampa.

In December 1974 LSS hired appellee Taylor to sell and install its systems. Shortly thereafter Bast and Stevens suggested to Taylor that he could operate an extension office of LSS in Jacksonville and sell and install appellants’ products in that area. They presented him with a Company-Dealer Expansion Agreement, consisting of two separate parts: Part 1, Management-Trainee Provision; and, Part 2, Purchase-Option Plan. Under Part 1, Taylor was to pay LSS $5,000 to be used to open and maintain the Jacksonville office. Taylor was to operate that office on a commission basis during a “training” period of two-to-six months. At the end of the training period Taylor was to have the option of entering into Part 2, whereby he could purchase the Jacksonville office for an additional $5,000. The agreement presented to Taylor was not furnished by appellants, nor did appellants participate in its preparation or execution.

On January 27,1975, Taylor signed Part 1 of the agreement, paid LSS $5,000, and began management of the Jacksonville office. On March 10 he notified LSS that he was abandoning that office because of LSS’s failure to provide the necessary operating capital and cooperation, and because he felt certain of its business practices were unethical.

In June 1975 Taylor sued both LSS and appellants for return of the $5,000 he had paid under Part 1, the Management-Trainee Provision; he later settled with LSS for $3,000, and dismissed it from the suit.

In July 1976 Taylor filed an amended complaint against appellants only. Taylor alleged that LSS had represented to him that it had the authority from appellants to grant him the right to distribute their products in the Jacksonville area. He further alleged that appellants knew of these representations, and also knew that they were false; that appellants made no effort to inform him that the statements were untrue, or to prevent LSS from making such statements. Finally, Taylor alleged that he had complied with all the conditions of Part 1 of the agreement, and that appellants were therefore liable for LSS’s breach of the agreement. At the conclusion of a non-jury trial, the court entered final judgment holding appellants liable for the breach of contract by LSS. The trial court found that LSS was an “agent” of appellants, and appellants thereby became liable for LSS’s actions. Damages were assessed at $1,518.28, representing Taylor’s $5,000 investment less the settlement and other sums he received from LSS. This appeal ensued.

Appellee Taylor did not suggest to the trial court that LSS had actual authority to act for appellants. Rather, he took the position that LSS had “apparent” authority; i. e., the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by his actions or words holds the agent out as possessing. Stiles v. Gordon Land Co., 44 So.2d 417, 421 (Fla.1950); 1 Fla.Jur. Agency, Section 34 (1955).

Appellants, on the other hand, argue on this appeal that there was no evidence before the trial court demonstrating that they made any representations, or conducted themselves in any way that would have led Taylor to believe Bast and Stevens had the power to act or speak on their behalf.

Taylor relies upon two events which he contends were sufficient to establish that appellants knew of the representations made to him by Bast and Stevens. Taylor first calls attention to a telephone conversation he had with Mr. McNeil, president of appellant Ultraguard, shortly before the Management-Trainee Provision was signed. The purpose of that call, Taylor said, was to make sure that Bast and Stevens “were on the up and up.” Taylor testified that McNeil told him “that they [Bast and Stevens] worked for David Cannon in Tampa, and that if I had any question about Ultra-guard Corporation or any of the systems that I should talk to them.” Shortly after the telephone conversation, Taylor attended a sales seminar in Tampa. Bast and Stevens were also there, as was McNeil. Taylor testified that at the seminar Bast and Stevens mentioned in the presence of McNeil that LSS intended to open a Jacksonville extension office. The inference, of course, was that the Jacksonville office would sell appellants’ products.

The evidence before the trial court did not comport with the well established principle of agency law that the statements or acts of an alleged agent cannot bind the principal unless there is evidence showing the principle authorized, assented to, or had knowledge of the acts or statements of the supposed agent. Paige-Detroit Motor Car Co. v. Pintado, 82 Fla. 210, 89 So. 549 (1921); 1 Fla.Jur. Agency, Section 9 (1955). See generally Taco Bell v. Zappone, 324 So.2d 121 (Fla. 2d DCA 1975). In the telephone conversation Taylor never mentioned anything to McNeil about the proposed contract. Nor was the contract mentioned at the sales seminar. And while there was testimony that Best and Stevens told Taylor they had paid a substantial fee to appellants to sell appellants’ products in Jacksonville, there was no evidence that Taylor ever mentioned this to appellants. Finally, there was no evidence that Taylor ever told McNeil or any other officer of appellants of any representations made to him by Bast and Stevens concerning appellants’ products.

Taylor’s ease relies on his claim of the apparent authority of Bast and Stevens to act as agents for appellants. This doctrine “rests on appearances created by the principal and not agents who often ingeniously create an appearance of authority by their own acts.” Taco Bell v. Zappone, supra, at 124. Here the evidence did not show that appellants had authorized, assented to, or had knowledge of the representations made by Bast and Stevens. So there was no legal basis upon which to hold appellants liable for breach of contract by LSS. Therefore, Taylor’s judgment against appellants cannot stand.

Reversed and remanded to the trial court with directions to vacate the judgment against appellants.

OTT and RYDER, JJ., concur.

      . At the time the contract was entered into, Ultraguard was a division of Owen. However, after the contract, but before suit, Ultraguard became a separate corporation.

      . It is unclear as to just who “them” is. might refer to Bast, Stevens, and Cannon, or possibly just to Bast and Stevens.


text:
    George E. GOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1370.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing.

BOARDMAN, C. J., and GRIMES and OTT, JJ., concur.


text:
    Alfred LASTER, Appellant, v. STATE of Florida, Appellee.
    No. GG-65.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from the judgment and sentence imposed upon him following his plea of nolo contendere to the charge of unlawfully carrying a concealed firearm, contrary to Section 790.01(2), Florida Statutes (1975). Prior to his plea, he filed a motion to suppress the evidence relating to the search of his person and the taking of a pistol and some cartridges from his outside coat pocket.

Defendant urges that the officers had no cause to stop and frisk him; therefore, so he contends, the pistol and cartridges removed from his pocket were the fruits of an unlawful search and evidence thereof should have been suppressed.

The trial court heard and considered testimony in connection with defendant’s motion. Evidence was presented, and the court found the facts to be that the defendant and a companion had been observed, in the nighttime, by two Daytona Beach police officers for a period of approximately one hour, walking back and forth on a sidewalk, in an area in front of and adjacent to a pornographic bookstore. The defendant was observing very closely the bookstore and its interior, as well as the flow of traffic. The officers observed the defendant and his companion remove a parked automobile from an area at the end of an alleyway behind the bookstore, an area not normally used by customers of the store, and park that vehicle in an even more obscure area under some trees and bushes. The officers testified that there was ample parking space available on the street in front of and near the bookstore. During the entire time that the officers observed the defendant in front of the bookstore, he kept his right hand in his front jacket pocket. It was from this pocket that the officers removed a loaded revolver.

The defendant urges reversal because his actions, so he contends, did not reasonably indicate that he had committed, or was about to commit a violation of the criminal laws of the State of Florida so as to justify the officer in stopping and frisking him pursuant to Section 901.151, Florida Statutes (1975). Of course, there would be nothing unusual for a person to stand or walk in front of a store with his right hand in his right pocket. However, when a person is engaged in conduct as was this defendant, we hold that such activity is amply sufficient to indicate to an alert officer of the law that such person and his activities justify immediate and appropriate attention. The defendant further complains, however, that if there was a reasonable basis for a temporary detention, his search was not authorized because the officer didn’t first inquire of him concerning the circumstances of his presence and his activities.

Under the circumstances, such inquiry prior to search was not necessary. The law recognizes the right of the officer, in the interest of his own protection, to conduct a prompt and rapid pat-down search. It was not necessary for an officer, confronted with circumstances kindred to these, to inquire of a person his name and social security number only to be answered by the click of a switchblade knife or the roar of a pistol. See Wilson v. State, 324 So.2d 700 (Fla.4th DCA 1976), and cases cited therein.

The action of the officers in stopping and searching the defendant was legal. The trial court correctly ruled upon the motion to suppress. The judgment and sentence appealed from are

AFFIRMED.

MILLS, Acting C. J., and SMITH, J., concur.


text:
    Abraham Thomas OLIVA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2062.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Albert L. Carnearte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen. and Edwin D. Davis, II, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Abraham Thomas Oliva, from a judgment of conviction for conspiracy to sell cocaine, and sentence thereon to 5 years in the state penitentiary. Oliva has raised two points on appeal. No error is shown with respect to Oliva’s first contention, that he was denied his right to fully cross examine one of the State’s witnesses, a paid confidential informant. See Crespo v. State, 344 So.2d 598 (Fla. 3d DCA 1977); Oliva v. State, 346 So.2d 1066, 1068 (Fla. 3d DCA 1977).

The second point on appeal is that the trial court erred in failing to discharge Oliva after he was denied a speedy trial since he was not tried within the time specified in Rule 3.191, Fla.R.Crim.P. While the record reflects that a timely motion for discharge on speedy trial grounds was made, it fails to reflect that the motion was ever heard, considered or ruled on by the trial court. Generally, an appellate court must confine its review to questions which were before the trial court and upon which a ruling adverse to the appealing party was made. See Yost v. State, 243 So.2d 469, 471 (Fla. 3d DCA 1971). If we were to consider the question, however, no error is shown as Oliva’s argument is based on “tacking” procedures which do not apply under Florida law. See King v. State, 303 So.2d 389, 391 (Fla. 3d DCA 1974); State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978).

Affirmed.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. Harvey EBERHART, Appellee.
    No. 77-1451.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Preddy, Kutner & Hardy and Howard K. Chema, Miami, for appellant.
    Horton, Perse & Ginsberg, George P. Tel-epas, Miami, for appellee.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This appeal questions the correctness of an order granting the plaintiff’s motion for summary judgment and ordering the parties to proceed to arbitration on plaintiff’s uninsured motorist claim. The first point raised is that there were issues of fact regarding whether the plaintiff gave proper notice of the accident. The record reflects that the defense of notice was not raised by the pleadings and was not placed at issue before the trial court. Fla.R.Civ.P. 1.110(d) and 1.120(c). The second point is that there were issues of fact as to whether or not the adverse vehicle was a hit and run vehicle as defined by the policy. The question of whether or not a hit and run vehicle was involved is a matter properly subject to determination in arbitration. Ebens v. State Farm Mutual Automobile Insurance Company, 278 So.2d 674 (Fla. 3d DCA 1973); Industrial Fire and Casualty Insurance Company v. Coquemard, 332 So.2d 636 (Fla. 3d DCA 1976). Therefore, the order granting plaintiff’s motion for summary judgment and ordering the parties to proceed to arbitration is affirmed.

Affirmed.