#### XYO QUIP, INC., Appellant, v. James H. COSTEIRA et al., Appellees.

No. DD-6.

District Court of Appeal of Florida, First District.

June 30, 1977.

Rehearing Denied Aug. 4, 1977.

George M. McClure, Martz & McClure, St. Augustine, for appellant.

Olen W. Meredith, St. Augustine, for ap-pellee.

ERVIN, Judge.

This is an appeal from a jury verdict in favor of the defendants below, owners of the Lion Motel in St. Johns County. XYO Quip, Inc. argues error in failing to direct a verdict in its favor and we agree.

*1077XYO Quip, Inc. is a large Ohio leasing firm. Along with its sister company, XYO Med, Inc., XYO Quip rents anything from airplanes to color televisions to medical equipment.

Employees of H. & R. Leasing, Inc., a Florida corporation, contacted the motel owners concerning the lease of color televisions for their business. The motel owners agreed, and a lease was entered into with XYO Quip as lessor. The supplier of the equipment was H. & R. Service. The lease provided for 60 monthly rental payments of $141.96 to XYO Quip, Inc., and the terms provided, “lessee, at its expense shall keep the equipment in good repair and furnish all parts, mechanisms and devices required therefore.” A *separate*service agreement was entered into with H. & R. Service. Servicing and theft insurance would be provided for 60 months on the 21 televisions for a total of $44.10 per month. It is clear the motel owners dealt only with H. & R. Leasing, and H. & R. Service was to supply the televisions, theft insurance and service. XYO Quip, Inc. only financed the purchase of the television sets. There was no evidence at trial concerning the relationship between H. & R. Leasing, H. & R. Service and XYO Quip.

After eight months, when the motel owners had failed to receive any servicing of the televisions, they refused to make any further payments to XYO Quip, Inc. Lawrence Bischoff, credit officer for XYO Quip, testified the motel owners made demand upon him for service. On behalf of XYO Quip, he attempted to secure other service arrangements, but testified he was unable to do so. The motel owners then tendered their television sets to Bischoff in return for a complete release. This was declined.

The motel owners made no payments on the contract after August 20, 1974 and are still in possession of the television sets. As provided for in the leasing agreement, XYO Quip accelerated the payments and declared the lease in default. Suit was then filed for the remaining $7,216.90 due on the contract.

The motel owners filed a third party complaint against H. & R. Leasing and default was entered when no appearance was made. The motel owners further defended by making a general denial to the complaint and raised by counterclaim and affirmative defenses, in part, an agency relationship between H. & R. Leasing and XYO Quip. This allegation was struck by the trial judge. Therefore the only issues before the jury were the existence of the contract, the breach by the motel owners and subsequent damages to the lessor XYO Quip.

At trial, the above facts were undisputed. Clearly, from such evidence and any reasonable inferences, the jury could not lawfully have returned the verdict for the motel owners. *Morgan v. Collier County Motors, Inc.,*193 So.2d 35 (Fla.App.1966); *Smith v. Peninsular Insurance Company,*181 So.2d 212 (Fla. 1st DCA 1965).

The motel owners argue, through their counsel, on appeal there was a fact issue in dispute — the question of whether the contract was entered into between XYO Quip, Inc. and the motel owners. The lease reads, “lessor is XYO Quip, Inc. or XYO Med, Inc.” According to the owners, the identity of the lessor was a material issue of fact that could only be determined by the jury. The argument is without substance. Lawrence Bischoff testified he was an officer of XYO Quip and that the lease agreement was between the Lion Motel and XYO Quip, Inc. Further, the lease states, “lessor is XYO Quip, Inc. or XYO Med, Inc. as determined by Lessor.” No evidence was introduced that XYO Quip, Inc. was not the proper party to the suit. This is not a material disputed issue requiring submission to a jury. *Black v. Heininger,*163 So.2d 3 (Fla. 2nd DCA 1964).

The allegations of agency between H. & R. Leasing and XYO Quip, Inc. having been struck from the motel owners’ pleadings, that question could not have been before the jury. Since the correctness of the order striking those defenses is not before this court on cross-appeal, and has not been argued or briefed, we may not consider any agency relationship between the companies.

Having determined the trial judge’s denial of the motion for directed verdict was *1078error, we reverse and remand for entry of judgment for XYO Quip, Inc. in the amount of $7,260.90 plus costs and interest.

MILLS, J., concurs.

BOYER, C. J., dissenting.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. It is axiomatic that the findings of a jury are clothed with a presumption of correctness. That presumption is strengthened when a trial judge reviews the evidence and denies a motion for a directed verdict and again denies a motion for a new trial.

The complaint filed by appellant is for damages based upon an alleged lease agreement between the appellant and appellees. By their answer the defendants specifically denied the existence of any lease between themselves and appellant. They also raised as an affirmative defense, mitigations of damages.

The instruments relied upon by appellant are classic examples of calculated fraud, framed and phrased to mislead. At the top appears the words “This is a Non-Cancela-ble Lease”. Beneath that caption is typed “Lion Motel” as lessee and “H & R Service”, which any reasonable person would anticipate and expect to be the lessor. Two-thirds way down the page appears the words “Lessor is XYOquip Inc. or XYOmed Inc.” Another document bearing at the top the same legend “This is a Non-Cancelable Lease” turns out to be, not a lease but a guaranty. Again, the names which are typed on the document are Lion Motel and H & R Service. A reading of the transcript of the testimony adduced at the trial reveals that there was testimony on behalf of appellees wherein they flatly denied that they had any contract, lease or otherwise, with XYO Quip, Inc. That evidence was admitted without objection. Appellees insisted that they dealt only with H & R Service and XYO Quip repeatedly and categorically denied any agency relationship between XYO Quip and H & R. The evidence revealed that XYO Quip or XYOmed, or both, sent large quantities of their lease documents to H & R Service for the latter’s use in solicitation.

The “lease” is so ambiguous as to who in fact the lessor is that its mere introduction certainly is not self-proving. The “guaranty” is no better. The verbal evidence is little more convincing. The jury might well have determined, as was its prerogative, that the plaintiff in the trial court, XYO Quip, Inc., was not proved to be the lessor. In such an instance it certainly would not be entitled to damages.

At no place does the record clearly reveal the extent of appellant’s claimed damages, which was its burden and responsibility at trial. On the other hand there is evidence, adduced by appellees, from whence the jury could have reasonably found that appellant had an opportunity to mitigate damages and failed to do so.

The jury obviously found that appellant, who was plaintiff in the trial court, failed to carry its burden of proof and the learned trial judge agreed. It is not the prerogative of this Court to substitute its judgment for either.

The jury has spoken. I would affirm.