¶1Harold Shapiro, Miami Beach, for appellant.
¶2Merle Litman, of Litman & Muchnick, Hollywood, for appellees.
¶3OWEN, Judge.
¶4Appellant, alleging fraud, sought restitution of the money which he had paid in part performance of his agreement to purchase a one-third interest in appellees' business. The case was tried nonjury, and at the close of the plaintiff's case, the court granted the defendants' motion for involuntary dismissal and subsequently entered final judgment in favor of defendants.
¶5The plaintiff's evidence, viewed most favorably to him, established a prima facie case of fraud. It is apparent that the trial court, in considering the defendants' motion for an involuntary dismissal, undertook to weigh the evidence as the trier of the facts and that it was upon such basis that he determined that the motion should be granted. This he may not do. Tillman v. Baskin, Fla. 1972, 260 So.2d 509.
¶6The judgment is reversed and the cause remanded for a new trial.
¶7Reversed and remanded.
¶8REED, C.J., and MAGER, J., concur.