36 Fla. 325 | Fla. | 1895
This case has now been reached for final disposition-on its merits. A partial statement of it will be found in the contempt proceedings growing out of the case, and published in connection with this opinion. After the opinion of this court on the demurrer to the answers in the contempt proceedings was rendered, plain
We will now examine the proceedings in the original case on the exceptions insisted on here. The original declaration filed in the case contained a special ■count and two common counts for money had and received, and for an account stated. Mark R. Bacon first demurred to the declaration, and his demurrer being overruled, five pleasjwere filed by him. Demurrers were first sustained to the third, fourth and fifth pleas, and amendments were filed in lieu thereof, with .an additional plea numbered six. Issue was joined on ■one of the amended pleas, one was demurred to, and' replications filed to two. Subsequently the replications were withdrawn and a demurrer substituted in one case, and a joinder of issue in another, making two amended pleas upon which issue was joined, and two that were demurred to. A demurrer was also filed to the first and second original pleas, and both demurrers were, upon argument, sustained. At this stage of the pleading the plaintiff, by leave of the court, .amended the first count of the declaration by setting out therein in Tiaee verba the contract alleged to have been entered into between Bacon Brothers, the defendants, and Green, the plaintiff. Mark R. Bacon obtained an extension of time to reply to the amended declaration, and within the time given interposed a a demurrer which was overruled. He then filed, within a time given for that purpose, five pleas ; issue being joined on the three first, and the fourth and fifth were stricken out on motion. The amended declaration, the demurrer and pleas thereto and the issues
We have examined the ruling of the court on the demurrer to the declaration as it originally stood, and find no error therein, but the proceedings up to the filing of the amended declaration are not set out in this opinion, for the reason that they are of no practical use in disposing of the case, in view of the conclusion we have reached on the pleadings.
Under our statute (McClellan’s Digest, p. 834, sec. 98, Rev. Stat. sec. 1044) in case an amended pleading is pleaded to before amendment, and is not pleaded to de novo within two days after amendment, or within such other time as the court shall allow, the pleadings originally'pleaded thereto, if applicable, shall stand and be considered as jfieaded in answer to the amended pleading. Livingston vs. L’Engle, 27 Fla. 502, 8 South. Rep. 728; Sammis vs. Wightman, 31 Fla. 10, 12 South. Rep. 526; Jordan vs. John Ryan Co., 35 Fla. 259, 17 South. Rep. 73. The statute evidently refers to replies to amendments in pleading, and it may be that one count in a declaration or one of several pleas, or parts of subsequent pleading may be amended without disturbing in any way the issues as to the other counts, pleas or subsequent pleading. If' any pleading to which reply has been made is subsequently amended, the repliantmay stand on his former-pleading, if applicable to the amendment, or he may avail himself of the right to plead anew to the amended pleading. By pleading de novo to the amended pleading within the statutory period of two days, or such other time as the court shall allow, the party pleading waives or abandons, we think, all former pleading applicable to the amended pleading, except that subsequently pleaded. There were but two pleas undis
The second plea mentioned amounts to nothing more than the general issue. It is a general traverse of the
The ruling on the demurrer to the amended declaration is insisted on here as error by counsel for plaintiff in error. The first and second grounds of this demurrer are in substance the same: that there are no averments in the declaration connecting Mark R. Bacon with the contract therein mentioned, or showing that he was one of the Bacon Brothers. The contract, made a part of the amended declaration, was executed between Bacon Brothers and L. N. Green, and it was signed by Delos H. Bacon, A. EL Bacon, L. N. Green and M. R. Bacon. The three Bacons are made defendants to the declaration, and it is therein alleged that the plaintiffs and defendants entered into the contract referred to. This clearly shows that M. R. Bacon was one of the parties to the contract, and on demurrer we see no room to doubt that he is properly alleged to be connected with the contract as a party thereto.
The third ground of demurrer is, that the contract is nota sealed instrument as to Mark R. Bacon, and is
The last ground of the demurrer is, that no receipt of money by M. E. Bacon is shown so as to charge-him for money had and received. The declaration alleges that the defendants received fifteen hundred dollars under the contract, and if it were true that Mark E. Bacon could not be held for an exclusive reception of money by his brothers, it can not be said, on demurrer to the declaration, that he received no money. The contract set out in the declaration contains a jointexecutory agreement on the part of the three Bacons to make a complete set of abstract books within a. specified time, upon terms and conditions mentioned. Conceding that Green was in a situation to rescind the contract an account of its violation by the Bacons, and that he did so, the obligation to refund to him the money paid thereunder is joint on the part of the Ba-cons, and they may be jointly sued for money had and received on their joint account. This point will be further considered in other objections raised by plaintiff in error.
The equitable pleas were stricken from the files on motion of plaintiff, and this ruling is assigned as error. The contention of counsel for plaintiff in error is, that the only way to reach the pleas was by demurrer, and not by motion to strike. They invoke the rule that when pleas properly sworn to are filed within time,, and are not entirely destitute of merit, they can not-
Several objections are urged here against the rulings of the court in admitting certain evidence offered by plaintiff, and in rejecting other evidence offered by defendant. We will group such objections as may be considered together. The original contract set out in the declaration was read in evidence over the objection of the defendant. Louen N. Green, the plaintiff, was asked on cross-examination whether Mark R. Bacon was one of the Bacon Brothers named in the contract, and whether he (Green) had any understanding before the contract was executed, that Mark R. Bacon was not to be bound as a party thereto. Green was also asked by defendant if the three Bacons and himself were parties to the contract, why it was that he was to have a third interest instead of a fourth? When the defendant Mark R. Bacon was on the stand his counsel sought to prove by him that he was not to be bound as a party to the contract, had no interest in it and Green so understood it. Certain covers for abstracts and letterheads that had been used in the Ocala abstract office, where Green was engaged for a time, were offered by the defendant. The covers and letterheads had printed on them the firm of Bacon Brothers & Green, said firm being composed of Delos H. Bacon Adolphus H. Bacon and L. 1ST. Green. There was also testimony offered by defendant that at the time of the execution of the contract in question there existed a firm of Bacon Brothers, and that Mark R. Bacon was not a member of the firm. The court admitted the
It is further objected that the court erred in permitting the plaintiff to state to the jury what one Crews •said in reference to the condition of the abstract books. Plaintiff visited Birmingham, Alabama, for the purpose of ascertaining the condition of the books, and found Crews at work on them and in charge of the office. The time for the completion of the abstract books, according to the contract, had then expired, and Crews informed plaintiff that the books were not more than half completed. This' statement is the one objected to by defendants. It appears from the evidence, without contradiction, that Crews was in the employment of the Bacons, working on the abstract books, and was in charge of them when the statement was made. Crews’ statement as to the condition of the books, made while he was actually engaged in work on them, and when they were in his charge, is, we think, admissible against his principals. But if such statement was improper, it can not be held as reversible ■error on the record before us. The plaintiff was the
A further objection is made that the court erred in permitting the plaintiff to testify that he paid fifteen hundred dollars under the contract to Bacon Brothers. One thousand dollars was paid to Delos II. Bacon, who receipted for it in the name of Bacon Brothers, and five hundred dollars was paid to Mark R. Bacon, who-also receipted for it in the name of Bacon Brothers. The theory of defendant’s objection is, that in this action the plaintiff can only recover, if at all, from the-
It is also objected that the court erred in admitting-in evidence certain letters written by Delos II. Bacon to the mother of the plaintiff. It is not contended that the letters contained irrelevant matter to the case,, btvt the sole contention is that they were not admissible in evidence against Mark R. Bacon, who alone defended the action. These letters relate to the abstract books agreed to be made by the Bacons, but as the only objection urged to their admission is that they were not written by Mark R. Bacon, their contents-need not be referred to. Deios H. Bacon, the writer of the letters, is one of the makers of the contract-, and his statements in reference to the abstract books-are admissible against his co-contractors. This will more fully appear from what is said under other exceptions hereinafter considered.
Mark R. Bacon was asked what he knew about the plaintiff extending the time for the completion of the-contract, or that there was even an extension of time for its completion. He stated that he knew it by implication and from his brothers. Plaintiff moved to-strike out all that portion of the evidence received from his brothers. The court ruled so much of the testimony as was based upon information from wit
Several objections are made to the ruling of the court in striking out certain interrogatories in depositions stated in the bill of exceptions to have been read to the jury. It appears from the bill of exceptions that plaintiff objected to certain interrogatories and the .answer thereto on grounds stated, and that the court .sustained some of the objections. We can not consistently with the settled rule of this court, consider •any of these objections. There are no depositions incorporated into the bill of exceptions, and we can not look to any other source for the testimony that was introduced on the trial. We find copied into the .record by the clerk some depositions and an agreement ■of counsel that they might be read on the trial of the case, subject to proper objections, but these depositions •are not found in the bill of exceptions, nor is there any reference to them as exhibits or otherwise, so as to make a part of the record proper. The agreement of counsel that depositions may be read in evidence .does not obviate the necessity of having such depositions as were read in evidence incorporated into the bill of exceptions. Myers vs. Roberts, 35 Fla. 255, 17 South. Rep. 358; Florida Central & Peninsular R. R. Co. vs. St. Clair-Abrams, 35 Fla. 515, 17 South. Rep.
Exceptions were taken to the giving and refusing instructions to the jury by the court, and we will consider such as were insisted on here. The first charge excepted to instructed the jury, in effect, that the written contract must be considered as a sealed instrument as to Mark R. Bacon. What we have already said disposes of this objection. That Mark R. Bacon is presumed to have adopted the seals on the instrument when he signed it, is sustained by the authorities we have cited.
The third charge is excepted to on the ground that it erroneously imposed the burden of proof on the defendant to show that he was not a party to the contract. The entire charge, substantially, is as follows: The court having ruled in the progress of the trial that the defendant Mark R. Bacon might show as a defense thatL. NT. Green accepted the written contract with the knowledge that he (Bacon) was not bound as a party thereto, the jury are instructed that it must clearly appear by a preponderance of the evidence, that Green so accepted said contract. The burden of proof is upon Bacon to show this defense, and unless the jury are satisfied by a preponderance of all the evidence that Green entered into the contract with full knowledge and understanding that Bacon was not to be bound as a party thereto, such defense must fail. As has already been stated, the court permitted, over the objection of plaintiff, Bacon to testify that he was not to be bound as a party to the contract, and Green was permitted to testify in rebuttal that he was to be so bound. Under the issues made in this case Bacon
The objection made to the fourth instruction given for plaintiff is that the contract is construed by the court to mean that the records of Jefferson county, Alabama, should be abstracted complete within the time provided for the making of the set of abstract books, and not that the record books in existence up to the time of making the contract should be abstracted. The contract provides for the making oí a complete set of abstract books of Jeffex-son county, Alabama, the said books to be completed within one year from the date of beginning work thereon. This means that within the time provided in the contract all the records of Jefferson county, Alabama, contemplated by the system to be abstracted should be abstracted complete up to the time of the fulfillment of the contract. This is the view that the trial court took of the contract in the charge excepted to, and we agree with this construction.
A general objection is made to the other charges given for the plaintiff down to the eighth, on the ground that they require a preponderance of the proof on the part of defendant. The fifth and seventh charges announce the rule that the defendant must establish by a preponderance of the evidence the de
The objections to the eighth, ninth and tenth charges given for the plaintiff may be considered together. The eight instructs the jury, in effect, that when one-party to a contract shows by competent evidence that •the other party thereto has failed and refused to carry it out, and that it has been rescinded, the party rescinding has the right to recover back the money paid under the contract, provided he can establish to the-satisfaction of the jury that said contract had been-broken by the other party, and notice of the rescission given within a reasonable time. The ninth states that if the plaintiff knew nothing of the condition of the-abstract books, except from representations of defendants, until he went to Birmingham about the 15th of June, 1888, and that he then found said books in an uncompleted condition, and that they were in fact not completed according to the contract, and that within three weeks or one month he informed defendants, or either of them, that he would rescind the contract, and further, that he returned to Florida, and within a week or ten days thereafter instituted suit to recover money he had paid under the contract, this was a reasonable time within which to rescind the contract, and he had a right to recover said money, provided the contract was broken by defendants, and the books were unfinished according to the contract. The tenth charge as
The third instruction given by the court for the defendant states that not every shortcoming of a party to a contract will authorize the other party to rescind. The acts and conduct of a party against whom a rescission of a contract is undertaken must be such as to evince an intention to be no longer bound by the con-, tract, and the breach of the contract must be in a substantial part thereof.
Several objections are urged to the instructions given for the plaintiff. It is first contended that it was not the province of the court to determine what was a reasonable time within which to rescind the contract, and such question should have been submitted to the jury for determination. In the second place it is insisted that the plaintiff had no right to rescind the contract and recover the money paid thereon, but could only sue for damages for the uncompleted portion thereof. And in the third place it is urged that the plaintiff could recover, if at all, only from the party receiving the money under the contract. In 2 Parsons on Contracts, page 677, it is stated that “whichever party has the right to rescind must do it within the time specified, if there be such a time, or otherwise within a reasonable time. What is a reasonable time, is in this, as in most other cases, a question of law for the court only.” Gordon vs. Simonton’s Admr., 10 Fla. 179. It is not contended here that under the facts and cir
In Brown vs. Harris, 2 Gray, 359, it is said: “It is a familiar principle of law that when money is paid by one party in contemplation of some act to be done by another, and the thing stipulated to be done is not done, the money may be recovered back in an action for money had and received.” See also Giles vs. Edwards, 7 Term Rep. 181, S. C. 4 Revised Rep. 414; Webster vs. Enfield, 5 Gilman (10 Ill.) 298; Evans vs. Givens, 22 Fla. 476; 2 Parsons on Contracts, 678. There may be cases where the parties can not be placed in statu quo when the right to rescind can not be exercised, or where one party to a contract has received benefits thereunder which he can not retain and rescind, but when one party to an entire executory contract has failed to perform it on his part, and the other party is not in default, and is in a condition to rescind, he may abandon the contract and bring an action of assumpsit to recover back what he has paid, or for what he has done thereunder whenever assumpsit will lie independent of the contract.
The exception to the eleventh charge given for plaintiff is disposed of by what has already been said. The objection is, that the jury were left to understand that Mark E. Bacon would be liable for money paid under the contract to his brothers.
Other charges given for plaintiff are not argued by counsel for plaintiff in error, and we do not discuss them.
The first instruction asked by the defendant was given after striking out a clause therein to the effect that Mark E. Bacon could not be held responsible for money paid under the contract to the other Bacons. It is now contended that it was error for the court to modify the charge, and that it should have been given or refused as requested. The portion of the charge eliminated was improper as we have seen. The Bacons,
The third instruction requested for defendant was refused. It states that if the jury find the contract to make the abstract books was partially performed by Bacon Brothers, who were proceeding in good faith to perform it, and that only a very small portion remained to be performed, the plaintiff could not rescind if he coul<I be compensated in damages for the part unperformed. It may be noted that the charge does not confine the jury to a finding from the evidence in the case. It is never proper to leave a j ury to decide a case from their own opinions or views without reference to the testimony before them. Doggett vs. Jordan, 2 Fla. 541. The charge was properly refused, on the testimony before us, on another ground. The plaintiff was the only witness examined in the case, as shown by the bill of exceptions, who had any personal knowledge of the condition of the books when notice of the rescission of the contract was given, and there is nothing in his testimony to authorize the submission of the case to the jury on the theory that a very small portion of the contract remained to be performed. According to his testimony at least thirty volumes of public records of Jefferson county had not been begun to be abstracted when he rescinded the contract, and there is no testimony before us in con
The third instruction requested by defendant, set-out supra, was given after striking out-the word “wil ful,” in the last paragraph. The charge as requested stated that the breach of the contract must be wilful in a substantial part of it. The word “wilful” was stricken out by the court. It was not essential to the right of plaintiff to rescind the contract that its viola
The fourth instruction refused is not argued.
The fifth is, in substance, that if after becoming aware that the abstract books had not been completed according to contract the plaintiff accepted the same, or stated to Bacon Brothers, or either of them, that he was satisfied with them, or did any other act or thing in recognition of the continued existence of the contract, he could not afterwards rescind the same. There is no testimony before us that plaintiff ever accepted the books, or informed Bacon Brothers, or either of them, that he was satisfied with the same. The uncontradicted testimony is that plaintiff refused to receive the books, and expressed dissatisfaction over the fact that they were not completed. We can not legally know what was shown in the depositions, and can not refer to them. A charge which undertakes to submit to the jury a case on a basis of facts upon which a verdict would be unauthorized, should not be given without reference to whether or not it contains a correct proposition of law. Tischler vs. Kurtz Bros., 35 Fla. 323, 17 South. Rep. 661.
The ninth instruction refused is the only remaining one argued by counsel, that can not be considered by us as abandoned. This instruction is, that if Mark R. Bacon did not receive any of the money from plaintiff, the jury should render a verdict in his favor. That this instruction was properly refused is apparent from what we have already said, and further comment is unnecessary.
The only remaining exception on the main case, argued by counsel for plaintiff in error, relates to the en
Errors are assigned on the record of the proceedings traversing the attachment affidavit, and we have a bill of exceptions properly signed embodying the proceeding on such issue. Conceding that the proceedings on such issue are properly before us for review, we have examined them and find no reversible error. What we have said in disposing of the assignments of error on the merits of the case covers all the objections raised on the traverse issue, and we do not deem it necessary
Counsel having failed to further prosecute the contempt proceedings instituted, and the case having now-been disposed of on its merits, an order will be entered in connection with the entry of judgment herein dismissing such contempt proceedings.
Judgment to be entered accordingly.