
    FRANK J. ROONEY, INC., a Florida Corporation, Appellant, v. George L. HULING, d/b/a Libra Enterprises, Appellee.
    No. 73-1479.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1975.
    Rehearing Denied June 26, 1975.
    James E. Glass, Miami, for appellant.
    Linton S. Waterhouse, Orlando, and James E. Foster of Fishback, Davis, Dominick & Simonet, Orlando, for appellee.
   PER CURIAM.

Affirmed.

CROSS, J., and LEWIS, ROYCE R., Associate Judge, concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge

(dissenting):

It is my conviction that the judgment should be reversed and remanded with instructions to enter judgment for defendant, Frank J. Rooney, Inc.

Just in sum, it is my view that two reversible errors were committed:

First, the trial court, under the proofs and law, erred when it denied the defendant’s Motion For Directed Verdict. Plaintiff did not prove a persistent refusal to pay an installment and plaintiff did not prove an inability or determination by defendant not to pay an installment when the installment was not specifically due on a date certain and, in the interim, the plaintiff had terminated performance.

Second, the trial court erred in awarding interest to plaintiff after the return of the jury verdict. Plaintiff did not prove or claim interest as an element of damages. The jury did not return a verdict for interest and it in no way indicated an intention to include interest in its verdict.

I respectfully dissent.  