
    B. B. McCORMICK & SONS, INC., a Florida corporation, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a Virginia corporation, and Florida East Coast Railway Company, a Florida corporation, Appellees.
    No. R-453.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1972.
    Rehearing Denied Jan. 19, 1973.
    
      Joseph M. Glickstein, Jr. and Thomas C. Dearing, of Glickstein, Crenshaw, Glick-stein, Fay & Allen, Jacksonville, for appellant.
    Raymond E. Watson, of Cox, Webb & Swain, Jacksonville, and Paul L. Martz, St. Augustine, for appellees.
   PER CURIAM.

Interlocutory appeal dismissed.

CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.

WIGGINTON, J., specially concurs.

WIGGINTON, Judge

(concurring).

I concur in the judgment dismissing this interlocutory appeal and affirming the partial summary judgment rendered by the trial court in this case. I do so for the following-reasons.

By the partial summary judgment appealed herein the trial court struck from the average weight agreement entered into between the parties to this cause that portion of the formula which specifies that the weight of the material forming the subject matter of the contract should be computed on the basis of 80 pounds per square yard, 1 inch in depth, based upon measurements of the job site after completion of the contract because the specification of 80 pounds per each square yard results in an unlawful discrimination prohibited by law, thereby rendering the contract based upon such formula void, illegal, and contrary to public policy. The proof before the court affirmatively established that because of a higher compaction rate required by the contract specifications, the weight per square yard, 1 inch in depth, greatly exceeded the 80 pound figure specified in the contract. It is my view that the trial court was correct when it found that the formula set forth in the agreement was divisible and the specified weight of 80 pounds per square yard, 1 inch in depth, should be stricken and the remainder of the contract between the parties enforced. Pursuant to this ruling as embodied in the summary judgment, a determination will be made upon trial as to the actual compaction rate of the material, which amount when so found will be substituted for the 80 pounds per square yard, 1 inch in depth, as specified in the agreement, and that the correct average weight of the tonnage hauled will be computed on the basis of such revised formula. Such construction prevents the contract from being discriminatory and offensive to the requirements of F.S., Sections 350.08 and 352.19, F.S.A., and will permit a computation of the average weight of the materials hauled by appellee for the benefit of appellant to be made on a fair and equitable basis.  