In this case jury trial was waived and the trial judge entered a judgment for the plaintiff on June 10, 1947.

On June 24, 1947, the defendant filed a "motion to vacate the judgment" which was denied on July 29, 1947.

On July 29, 1947, the defendant filed a motion for new trial, which motion plaintiff moved to strike, both of which motions were denied.

The appellee has filed a motion to strike the stenographic report of the trial proceedings, commonly known as a "bill of exceptions," upon the ground that a motion for new trial was not filed within four days and for that reason the sufficiency of the evidence to support the judgment cannot be brought into question.

One purpose of a Motion for New Trial is to procure a ruling of the trial court on matters which have not been considered and adjudged by it under the circumstances existing when the motion is made. It is not the purpose of a Motion for New Trial to merely procure a second ruling on the same subject matter as previously presented and ruled upon without a material change in the circumstances.

Our Common Law Rules provide:

"Rule 74. Exceptions Unnecessary.

"(a) Adverse rulings. — Upon all appellate proceedings in actions at law the appellate court shall review, without exception having been taken in the trial court, any question of law involved in any adverse ruling, order, instruction or thing whatsoever said or done at the trial or prior thereto or after verdict, which thing was said or done after objection made and considered by the trial court, and which affected the substantial rights of the party complaining and which is assigned as error and thereupon the appellate court may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm or modify any and all the proceedings *Page 304 subsequent to or dependent upon such judgment or order, and may, if proper, order a new trial.

And before the adoption of the foregoing Rule in 1936 this Court had held:

"Where charge directing verdict duly excepted to when given, motion for new trial and ruling thereon not necessary. Greenblatt v. J. R. Bissell Dry Goods Co., 85 Fla. 83, 95 So. 302."

Want of Motion for New Trial does not preclude Supreme Court from reviewing rulings of Circuit Court, exceptions to which, duly taken during trial, are properly embodied in record. Holstun v. Embry, 124 Fla. 554, 169 So. 400.

Section 54.24 F.S. 1941, F.S.A., among other things provides:

"It shall not be necessary to incorporate, in motions for new trials, any matters in pais previously excepted to, for the purpose of having the same reviewed by an appellate court. . . ."

Except for good reason, when jury is waived and the trial judge enters judgment, a motion for new trial is not necessary in order for the Supreme Court to consider the sufficiency of the evidence to support the judgment.

Since exceptions to adverse rulings are allowed by rule of court as of course and since the reason for requiring a motion for new trial, when the issues of fact are tried by a jury, are not applicable when a jury trial is waived, the errors of a trial judge or issues of fact tried by him may be considered by this court without the necessity of a motion for new trial. One harmful error on the same point under like circumstances is sufficient for appellate purposes.

The bill of exceptions is very material to this appeal. It is authenticated as provided for by Supreme Court Rule 11 (3) and the motion to strike should be denied.

As stated in the opinion prepared by Mr. Justice TERRELL, what we are impelled to answer is "whether or not appellee exercised his option in the time and manner required by its terms." *Page 305

The option given by Baker is set forth in haec verba in the case of Coleman v. Baker, 25 So. 2d 862, and the purported exercise of this option is likewise set forth therein. Coleman's letter was plead as an exercise of such option and this Court was called upon to adjudicate whether or not the appellee, Coleman, had exercised the option, and this Court, after quoting the offer and acceptance, held the declaration stated a cause of action. The declaration in this suit is substantially the same as in Coleman v. Baker (supra) and the trial judge found for plaintiff upon the declaration and defendant's pleas.

The option seems to have been without consideration, therefore could have been withdrawn before acceptance. It was not withdrawn before the purported acceptance.

If Baker had seen fit to require the option to be exercised by the tender of cash, he could have so specified. After the offer was made and accepted it became an executory contract, subject to either party's placing the other in default as to performance in accordance with the principles of law set forth in Sandford v. Cloud, 17 Fla. 532.

Coleman, in his letter of acceptance of Baker's offer or exercise of his option dated December 15, 1943, did state: ". . . I do hereby state it is my intention to exercise said option . . ." If this was subject to a construction of afuture intention or a present intention, then in the prior case it was given the latter construction, wherein this Court stated that "the plaintiff's letter was 'an election.'" If we are to now conclude that it was not, we must give a better reason.

The ruling in Coleman v. Baker, supra, was only conclusive as to the sufficiency of the declaration. It was in this case subject to proof and defensive pleadings and proof.

The trial judge found the issues upon the pleading to have been established in favor of the plaintiff, Coleman, and if the judgment is to be reversed it must be on the ground that the evidence fails to support the issues on behalf of the plaintiff-appellee, and that it was thereupon error to enter judgment for plaintiff. I fail to find that the appellant has carried this burden.

CHAPMAN, J., concurs. *Page 306