
    Paul STUPNER and Marilyn Stupner, his wife, Appellants, v. Constance CACACE and Tito Cacace, her husband, Appellees.
    No. 69-481.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1970.
    Rehearing Denied March 6, 1970.
    Bernard B. Weksler, Miami, for appellants.
    Nadler & Tunick, Miami, for appellees.
    Before PEARSON, C. J., SWANN, J., and FALK, JACK A., Associate Judge.
   FALK, JACK A., Associate Judge.

This is an appeal by the plaintiffs below from a $615.00 Final Judgment entered by the Civil Court of Record in a non-jury case. The plaintiffs were the purchasers under a deposit receipt contract wherein the defendant-appellees agreed to sell a residence for $40,000.00. After the contract was executed, the vendors refused to conclude the transaction and subsequently sold the residence to another party for $45,000.00.

The lower court refused to consider as an element of the plaintiffs’ damages the loss of the plaintiffs’ bargain, and profit made by the defaulting vendors on the second sale.

A motion for new trial as to damages alone was made, and denied by the trial court.

We think that the trial court erred in failing to consider evidence relating to the value of the property at the time of the breach in the form of a subsequent deposit receipt for the sale of the property. The general rule is that any evidence is admissible which proves or tends to prove any fact material to the issues. Evidence is the means by which some fact in question is established or disproved. 13 Fla. Jur. Evidence § 2. The lower court should have permitted into evidence the deposit receipt of the second sale as reflecting on the value of the property at the time of the breach. See Gassner v. Lockett (1958, Fla.) 101 So.2d 33. The case is reversed and remanded for a new trial as to damages only.

ON REHEARING

The appellees, petitioners for rehearing, state that this court erred in stating appel-lees subsequently sold their residence to another party and that indeed the sale did not take place. The record did reflect that appellants tried to introduce a deposit receipt contract between appellees and a third party for the sale of the property but the trial judge refused this evidence.

By our former opinion we did not intend that the trial judge on a retrial as to damages would be required to return a verdict m the amount of the alleged profit on the lost bargain, but that the deposit receipt contract should be admitted as evidence of the value of the property; so that if the trier of fact did determine (1) there was a lack of good faith on the appellees or (2) the appellee benefited from any mistake that may have been made, then a proper damage verdict could be entered.

If petitioners’ reasoning were followed, the trial judge could have found either of the alternatives mentioned, supra, to have existed but having excluded the deposit receipt as evidence not been able to return a verdict for appropriate damages.

Accordingly, we adhere to our former opinion and the petition for rehearing is denied.  