
    OLIN’S, INC., a Florida corporation, Appellant, v. AVIS RENTAL CAR SYSTEM OF FLORIDA, INC., a Florida corporation, Appellee.
    No. 61-726.
    District Court of Appeal of Florida. Third District.
    May 22, 1962.
    See also 135 So.2d 434.
    Achor & Achor, Miami, for appellant.
    Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.
    Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
   HENDRY, Judge.

This is the latest in a long series of appeals involving the parties herein and the subject matter of this litigation.

We, therefore, deem it unnecessary to go into a detailed discussion of the facts of the case as they are fully reported in the previous appeals.

Briefly stated this case commenced in October, 1957, when Avis Rental Car System of Florida, Inc., (hereafter Avis) filed a complaint against Olin’s, Inc., (hereafter Olin’s) seeking a declaratory decree adjudicating the rights of the parties under a written contract. The plaintiff alleged in its complaint that it was in doubt as to its rights, status and other equitable or legal relations with the defendant under the terms and provisions of said contract. The particular provisions being referred to are as follows:

“4. Olin’s agrees not to solicit a contract with said airport, county commission or anyone in authority in connection with said airport contract, directly or indirectly, either at this time, or at any time during the life of Avis’ contract and any extension thereof during the life of this contract, except if said airport contract should be terminated any time through the fault or through circumstances beyond the control of either party hereto.”
“6. In the event Licensee shall violate any of the terms, covenants, conditions or provisions hereof, Licensor may at its option terminate this Agreement by giving to Licensee, at least ten (10) days prior to such termination date written notice of its intention to terminate this Agreement, specifying therein the date on which such termination shall become effective.”

The case went to trial with a jury on plaintiff’s second amended complaint and the defendant’s answer. The issues raised by the pleadings were whether Olin’s had breached its agreement with Avis and, if so, the amount of damages Avis was entitled to recover. The trial consumed almost two days during which time witnesses testified on behalf of the plaintiff and the defendant and numerous exhibits were introduced in evidence. After all of the evidence was in and the parties had rested the plaintiff moved the court for a directed verdict. The motion was granted as to liability but given to the jury on the question of damages. The question of damages was submitted to the jury by the court without any instructions from the court. The jury returned a verdict for the plaintiff in the amount of $125,596.18. A partial final decree followed the verdict. It is from the partial final decree that this interlocutory appeal is taken.

The appellant, Olin’s, urges several grounds for reversal. The first one we shall consider is the propriety of the trial judge’s action in directing a verdict as to liability for the plaintiff. Appellant contends that the trial judge was in error in directing the verdict because he failed to consider all of the facts adduced by the defendant’s witnesses as either (1) true, or (2) in the light most favorable to the defendant, or (3) resolved conflicting facts in favor of the defendant.

We have reviewed the testimony of all the witnesses together with the exhibits admitted in evidence. From such study we are convinced that the appellant’s position has merit and therefore the trial judge should not have directed such verdict. The Supreme Court of Florida, in Hilkmeyer v. Latin American Air Cargo Expediters, Fla. 1957, 94 So.2d 821, stated at page 824:

“This Court’s views have recently been recorded:
“ ‘Power to direct a verdict should be cautiously exercised and the same should never be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for the adverse party be sustained. * * * A party moving for a directed verdict admits not only facts shown by the evidence, but also reasonable inference favorable to the adverse party that the jury might fairly and reasonably arrive at from the evidence, and if the evidence is conflicting, or evidence tending to prove the issues, the case should be submitted to the jury as a question of fact under appropriate instructions.’ Katz v. Bear, Fla.1951, 52 So.2d 903, 904.”

See Oppenheimer v. Werner, Fla.1950, 46 So.2d 870; Chaney v. Headley, Fla.1956, 90 So.2d 297; Bryan v. Loftin, Fla.1951, 51 So.2d 724; Mullis v. City of Miami, Fla. 1952, 60 So.2d 174. See also § 54.17, Fla. Stat., F.S.A.

The appellant also assigned as error the trial judge’s refusal to permit Olin’s witnesses, Stacy Rowell and Jerome Green, to testify as to the ambiguity and doubtful effect of paragraph four of the agency contract between Avis and Olin’s.

In McNair & Wade Land Co. v. Adams, 54 Fla. 550, 45 So. 492, the Supreme Court said at page 493:

“It is a well-settled rule that parol evidence is not admissible to vary or contradict the terms of a written instrument, and that a written contract which is intelligible on its face must control; the parties understanding fully what the contract contains. Jenkins v. Lykes, 19 Fla. 148, 45 Am.Rep.19. While this is true, yet it is also equally true that parties to a written agreement may prove facts consistent with the agreement although not expressed in it. *=!==(= »

See Friedman v. Virginia Metal Products Corp., Fla.1952, 56 So.2d 515, 33 A.L.R.2d 956.

The trial judge determined that the language used in the contract in question was clear, definite and unambiguous and therefore refused to permit the parol testimony proffered by the defendant.

As the court stated in the Friedman case, supra:

“It is a cardinal rule that the construction of all written instruments, is a question of law and belongs to the courts, provided: ‘the language used is clear, plain, certain, undisputed, unambiguous, unequivocable, and not subject to conflicting inferences’. * *

Applying the above rule to the contract in question we are of the opinion that the trial judge was correct in excluding parol testimony proffered by the defendant.

Having reached the conclusion that the trial judge committed reversible error in directing a verdict for the plaintiff on the question of liability and that the cause must be reversed fpr a new trial we find it unnecessary for us to rule on the other questions posed here for adjudication.

Reversed for further proceedings in accordance with this opinion.

CARROLL, Judge

(concurring in part and dissenting in part).

I concur in the judgment of reversal and the remand for new trial, but I respectfully dissent from the maj ority holding that it was not error to reject evidence of the intent of the parties as to the provision of the contract by which Olin agreed not to seek a concession contract from the county during the effective period of the Avis-County contract. From its outset, this suit for declaratory decree has hinged on the meaning and effect of that provision.

Here there was a latent ambiguity, and extrinsic evidence bearing on the intent of the parties, therefore, was admissible. A latent ambiguity exists when a contract provision, clear on its face, is shown by some extraneous fact to present an equivocation, by being susceptible to two meanings or applicable to two or more subj ects.

The only debatable question would appear to be whether a latent ambiguity is presented. If it is, then parol evidence is admissible to resolve it and it is the duty of the trial court to allow such evidence including declarations of the parties in order to give effect to that meaning which the parties intended for the instrument. To hold that such evidence when offered to resolve a latent ambiguity may properly be rejected, is to rule in conflict with established authority on the point. See footnote No. 2.

The provision by which Olin agreed not to solicit a concession contract while the Avis-County contract lasted, was clear and unambiguous on its face. The latent ambiguity arose as a result of the extraneous fact that Avis’ rental car concession contract was not exclusive. Others were free to obtain such a concession contract from the county, and to compete with Avis during that period. The county could grant such competing contracts to others. In that circumstance, the restrictive provision could fit either of two meanings. It could have been intended (as claimed by Olin) to prohibit Olin from obtaining a concession contract under which Olin would compete with Avis during the term of Avis’ contract with the county, or it could have been intended (as claimed by Avis) to prohibit Olin from obtaining, during the Avis-County contract period, a concession contract for use by Olin at a- future date after termination of the Avis-County contract. If the former meaning was the one intended by the parties there was no breach of the contract. If the latter was intended, that is, that Olin should not seek a concession contract to be effective after the term of the pending Avis-County contract, then there would appear to be a breach unless Olin should prevail on the issue raised by its contention that Avis authorized Olin to bid for a new rental car concession contract for their mutual benefit. 
      
      . See Olin’s, Inc. v. Avis Rental Car System of Florida, Fla.App.1958, 100 So.2d 825; Id., Fla.App.1958, 102 So.2d 159; Id., Fla.1958, 104 So.2d 508; Id., Fla.App.1958, 105 So.2d 497; Id., Fla.App.1961, 131 So.2d 20.
     
      
      . The decree was partial in that the court provided in part as follows:
      “IT IS FURTHER ORDERED and DECREED that the Court hereby reserves jurisdiction of the cause to determine and adjudicate the nature and extent, if any, of the further relief prayed for and to which the plaintiff may be entitled by way of an accounting or other purely equitable remedy; such determination to be considered and made pursuant to such further orders and decrees as equity may require.”
     
      
      . The applicable portion of the contract reads as follows:
      “Olin’s agrees not to solicit a contract * * * either at this time or at any time during the life of Avis’ contract * * * and any extension thereof during the life of this contract * *
     
      
      . “Olin’s agrees not to solicit a contract with said airport, county commission or anyone in authority in connection with said airport contract, directly or indirectly, either at this time, or at any time during the life of Avis’ contract and airy extension thereof during the life of this contract, except if said airport contract should be terminated any time through the fault or through circumstances beyond the control of either party hereto.”
     
      
      . The rule that extrinsic evidence is proper to resolve a latent ambiguity is well established. See Friedman v. Virginia Metal Products Corp., Fla.1952, 56 So.2d 515, 516-517, 33 A.L.R.2d 956; Whitfield v. Webb, 100 Fla. 1619, 131 So. 786, 788; Holmes v. Kilgore, 89 Fla. 194, 103 So. 825, 827; Cawthon v. Stearns Culver Lumber Co., 60 Fla. 313, 53 So. 738, 739; La Fayette Land Co. v. Caswell & Knight, 59 Fla. 544, 52 So. 140. 141; Solary v. Webster, 35 Fla. 363, 17 So. 646, 649; Atlantic & Gulf Properties, Inc. v. Palmer, Fla.App.1959, 109 So.2d 768, 770-771; 9 Wigmore, Evidence (3rd ed. 1940) § 2472.
     
      
      . Olin’s answer did not expressly plead this as an affirmative defense, but the issue had a basis in the pleadings, from paragraph 3 (i) of the complaint and the answer thereto. Previously Olin had taken that position in opposing a motion for summary judgment before answer. See Olin’s, Inc., v. Avis Rental Car System of Florida, Fla.App.1958, 102 So.2d 159, 162; id., 105 So.2d 497, 498. Triable issues as to breach of contract, represented by that contention and by Olin’s contention the agreement was not to seek a present competing contract (answer to complaint par. 3(d), were considered sufficiently pleaded to justify denial of Olin’s motion before trial to enlarge the answer. See id., 131 So.2d 20, 21.
     