DAMAGES FOR BREACH OF CONTRACT-DUTY TO DIMINISH.-A party suing for breach of contract is required to do what be reasonably can and improve all reasonable opportunity to lessen the injury and reduce the damages caused by the breach: Sherman Certer Town Co. v. Leonard, 46 Kan. 354; 26 Am. St. Rep. 101, and note. Where a party has been damaged by the failure of another to perform his contract, the law does not permit him to so conduct himself as to enhance the damages and recover the damages so enhanced: Milwaukee Boiler Co. v. Duncan, 87 Wis. 120; 41 Am. St. Rep. 33, and note. See, also, the note to Wright v. Bank, 6 Am. St. Rep. 364, 365.

INTEREST SHOULD BE ALLOWED, THOUGH A DEMAND IS UNLIQUIDATED, wherever a debtor is in default in paying money, delivering property, or rendering services pursuant to his contract, if the amount can be ascertained by an inquiry concerning the value: Van Rensselaer v. Jewett, 2 N. Y. 135; 51 Am Dec. 275, and note. See, also, the notes to Cox v. McLaughlin, 9 Am. St. Rep. 173, Lewis v. Rountree, 28 Am. Rep. 314, 315, and De Lavallette v. Werdt, 31 Am. Rep. 498.

DAMAGES-INTEREST.-When one is liable for the destruction of property having a market value easily susceptible of proof, the damages recoverable from him should include not only the market value of the property at the time of its destruction, but interest on the amount of such value to the date of the judgment: Regan v. New York etc. R. R. Co., 60 Conn. 124; 25 Am. St. Rep. 306, and note. See, also, the extended notes to Fraser v. Little, 87 Am. Dec. 750; Lewis v. Rountree, 28 Am. Rep. 314; Selleck v. French, 6 Am. Dec. 193.

SUMMERALLS v. STATE.

[37 FLORIDA, 162.]

CRIMINAL LAW-ABSENCE OF ACCUSED-MISTRIAL.If a defendant absconds before verdict returned in a trial for felony no legal verdict can be received or rendered during his absence, and a judgment entered subsequently upon a verdict so received, is null and void, and renders the whole proceeding a mistrial.

CRIMINAL LAW-ABSENCE OF ACCUSED-PRACTICE.— If a defendant on trial for a crime absconds before a verdict is rendered, the proper practice is for the court to declare a mistrial and discharge the jury without any verdict, after becoming satisfied that the defendant cannot be produced in court within a reasonable time.

J. W. Brady, for the appellant.

W. B. Lamar, attorney general for the state.

163 TAYLOR, J. The plaintiff in error was indicted at the fall term, 1894, of the circuit court for De Soto county, for the larceny of a domestic animal, to wit, one cow, which offense, under our statute, is punishable by imprisonment in the state penitentiary, that constitutes it a felony. At the spring term of said court, 1895, he was arraigned, pleaded not guilty, and put upon his trial. While the jury were out considering their ver

dict, he fled the court, and could not be found when the jury returned into court with their verdict. After some considerable delay, the court, in the defendant's absence, received from the jury their verdict of "guilty," and had the same recorded in the minutes and discharged the jury. At the succeeding fall term, 1895, the defendant, having been apprehended, was brought into court, and thereupon moved in arrest of judgment upon the ground that the record showed that he was not personally present when the verdict in his cause was received and put on record. This motion the court overruled; whereupon the defendant moved for a new trial upon the same ground, which motion was also overruled, and the defendant was sentenced to one year's imprisonment in the state penitentiary. From this judgment writ of error is taken.

164

It is well settled by repeated decisions here, as well as in other states, that in cases of felony the accused must be personally present in court during every stage of his trial from its beginning to and including the final passing of sentence. If it is shown that he was absent during the taking of any essential step in the trial, he cannot be said to have had a trial in due course of law. He has a right to be present in person at the rendition of the verdict in order to exercise the right of polling the jury, and the verdict, in such cases, cannot legally be rendered or received during his absence; and it makes no difference whether his absence be voluntary or involuntary. The proper practice in such cases, when the court finds that the prisoner has absconded, is to have diligent efforts made to apprehend him and bring him into court, and upon being satisfied that he cannot be produced within a reasonable time, to declare a mistrial and discharge the jury without the rendition of any verdict at all. A verdict rendered and received in such a case during the prisoner's absence is a nullity, and no valid sentence can be pronounced thereon. Under the circumstances disclosed by this record, the trial of the defendant at the spring term, 1895, and his subsequent sentence at the ensuing fall term were mere nullities, amounting to nothing more than a mistrial: Rev. Stats., sec. 2906; Lovett v. State, 29 Fla. 356, and Florida cases there cited; State v. Battle, 7 Ala. 259; State v. Hughes, 2 Ala. 102; 36 Am. Dec. 411; People v. Higgins, 59 Cal. 357; State v. Hays, 2 Lea, 156; Sneed v. State, 5 Ark. 431; 41 Am. Dec. 102; 1 Bishop's Criminal Procedure, 165 2d ed., secs. 273, 1180, and cases cited; Bishop's New Criminal Law, sec. 998, and cases cited in subdivision 4.

The judgment and sentence of the court below is reversed and a new trial ordered.

CRIMINAL LAW-ABSENCE OF ACCUSED.-The failure of the record to show that a person accused of crime was present in court when the verdict of guilty was rendered against him, or that he was present when sentence was pronounced against him, or immediately before, or that he was asked by the court if he had anything to say why he should not be sentenced, is fatal to the verdict and judgment thereon: French v. State, 85 Wis. 400; 39 Am. St. Rep. 855, and note. See, also, the extended notes to Warren v. State, 68 Am. Dec. 219, and Fight v. State, 28 Am. Dec. 629.

LITTLE V. BARLOW.
(37 FLORIDA, 232.]

RES JUDICATA.-Under plea of the general issue, a former recovery may be shown in evidence.

RES JUDICATA-CONCLUSIVENESS.-A former recovery, when pleaded in bar and proved, is conclusive upon the parties.

RES JUDICATA—EVIDENCE OF UNDER GENERAL ISSUE-CONCLUSIVENESS.-If evidence offered under a plea of the general issue to support a contention of res judicata shows that the same subject matter has already been litigated and adjudicated between the parties by the final judgment of a court of competent jurisdiction, it is as conclusive a bar to any further recovery as though it had been urged by special plea in bar.

RES JUDICATA-EVIDENCE.-If the matter in issue in a former suit does not appear upon the record offered, under the plea of the general issue, as evidence of such former adjudication, it may be shown by extrinsic evidence.

RES JUDICATA-EVIDENCE.-To sustain the contention of res judicata, the complete record in the former suit, including the judgment therein, and not detached portions thereof, must be offered in evidence.

W. L. Peeler, for the appellants.

233 TAYLOR, J. The appellee, T. H. Barlow, sued the appellants in the circuit court of Orange county in assumpsit for goods. sold and delivered, for work and labor done and performed, for money paid by the plaintiff for the use of the defendants, for moneys received by the defendants for the use of the plaintiff, and for moneys found to be due upon an account stated between them. The defendants pleaded the general issue, that they never were indebted as alleged. The cause was tried before a jury, and resulted in a verdict and judgment for the plaintiff in the sum of six hundred and forty-one dollars and twenty-four cents. From this judgment the defendants below appeal.

Several errors are assigned, but we deem it unnecessary to notice any of them, except one upon which the judgment below must be reversed. At the trial, the defendants offered in evidence the record of a judgment in the circuit court of Orange county in a suit in assumpsit between the same parties, wherein Little Brothers were plaintiffs and T. H. Barlow was defendant, and in which they recovered judgment against Barlow for one hundred and seventy-two dollars and ninety cents, and in which the same subject matter was apparently involved that is in controversy in the present suit. To the introduction of the record of said judgment in evidence the plaintiff objected, on the ground that the defendant had not specially pleaded the former judgment. This objection was sustained 234 by the court, and the proffered evidence excluded, to which exception was duly taken, and it is assigned as error. The court erred in this ruling. It is abundantly well settled that a former recovery may be shown in evidence, under the general issue, as well as pleaded in bar, and that when pleaded it is conclusive upon the parties. But whether it is conclusive when given in evidence is a question upon which the authorities are in conflict: 1 Greenleaf on Evidence, 15th ed, sec. 531, and citations. We are in accord with these authorities that hold that if the evidence offered to support the contention of res judicata shows that the same subject matter has already been litigated and adjudicated between the parties by the final judgment of a court of competent jurisdiction, that it is as conclusive a bar to any further recovery as though it had been urged by special plea in bar: Duchess of Kingston's Case, 3 Smith's Lead. Cas., 9th ed., 1998; Perkins v. Walker, 19 Vt. 144; Kilheffer v. Herr, 17 Serg. & R. 319; 17 Am. Dec. 658; Shafer v. Stonebraker, 4 Gill & J. 345; Betts v. Starr, 5 Conn. 550; 13 Am. Dec. 94; Chamberlain v. Carlisle, 26 N. H. 540. It is further held that if the matter in issue in the former suit does not appear upon the record offered as evidence of such further adjudication, it may be shown by extrinsic evidence: King v. Chase, 15 N. H. 9; 41 Am. Dec. 675; Lawrence v. Hunt, 10 Wend. 80; 25 Am. Dec. 539; Preston v. Harvey, 2 Hen. & M. 55; Estill v. Taul, 2 Yerg. 466; 24 Am. Dec. 498; Marsh v. Pier, 4 Rawle, 273; 26 Am. Dec. 131.

Upon the objection urged to the admissibility of the former judgment between the parties in evidence, the 235 ruling of the court was erroneous, and as a new trial must result, it will be proper to say that, to prove what the question in issue was in a former suit, the complete record of such suit should be produced,

including the judgment therein, and not detached portions thereof: Foot v. Glover, 4 Blackf. 313.

The judgment appealed from is reversed and a new trial ordered.

RES JUDICATA-EVIDENCE OF.-This subject is exhaustively treated in the monographic note to Fahey v. Easterly Machine Co. 44 Am. St. Rep. 562-572, where the principles enunciated in the principal case will be found treated.

TATE V. PENSACOLA GULF, LAND & DEVELOPMENT CO.

[37 FLORIDA, 459.]

CONTRACT.-TIME IS NOT REGARDED as of the essence of a contract in equity, unless expressly made so by the contract itself.

SPECIFIC PERFORMANCE-UNREASONABLE DELAY.Although a court of equity does not regard time as of the essence of a contract, unless it is so expressly stipulated, yet it does require of one who seeks specific performance, that he shall not be guilty of unreasonable delay.

SPECIFIC PERFORMANCE - CONTRACT TO CONVEY LAND.-If a vendee is in possession of premises under an assertion and exercise of right and by permission of the vendor after paying part of the purchase price, the mere lapse of time does not bar the remedy of the vendee for specific performance of the contract to convey.

SPECIFIC PERFORMANCE - CONTRACT TO CONVEY LAND.-If a vendee takes and retains possession of premises with the vendor's consent, under a contract to purchase, his mere delay in bringing suit, or even in paying the price, does not prevent him from compelling a conveyance upon a subsequent payment or tender of the amount due, nor is his right to such relief cut off until the vendor places a limit on the lapse of time by a demand of payment at or before a specified day, and by notice that the agreement is to be rescinded unless the demand is complied with, and the vendee makes default thereon.

SPECIFIC PERFORMANCE - CONTRACTS TO CONVEY LAND. In a suit for specific performance of a contract to convey land, the vendor, to make the plaintiff's delay available as a defense, must have performed, or been ready and willing to perform, all the terms of the contract stipulated for on his own part.

VENDOR AND VENDEE-CONTRACT TO CONVEY-SUBSEQUENT PURCHASERS.-Persons acquiring title to land with notice of a pre-existing contract of sale made by their vendor are bound thereby to the same extent as such vendor.

VENDOR AND VENDEE-PURCHASER'S DUTY TO INQUIRE INTO TITLE.-If a party other than the grantor is in possession of land, it is the purchaser's duty to inquire into the title thereto, and the presumption of law is, that upon such inquiry he ascertains the true state of the title.

VENDOR AND VENDEE.-ACTUAL POSSESSION is notice to all the world of whatever rights the occupant really has in the premises, and a vendor cannot convey to any other person without