75 Fla. 79 | Fla. | 1918
The appellant brought suit to enforce a mortgage lien on real estate.
The defendants F. M. Lanier and Rosa Lee Lanier answered “That it is true as alleged, in said bill that, the defendant F. M. Lanier was indebted to the complainant in the sum of money named in said bill, and on said date executed the note described, and to secure the payment of said note, the defendant last abové named made, executed and delivered the mortgage also described in said bill of complaint. * * *.
“Further answering the said F. M. Lanier says that at the time of making of said note and mortgage described in the complainant’s said bill, the said complainant, unknown to this defendant, but learned by him, was indebted to this defendant in divers sums of money, the exact amount of which this defendant is not now able to state, but which far exceed® the amount now claimed by the complainant of this defendant by reason of said note and mortgage; that the indebtedness from the complainant to this defendant was incurred in the following manner:
• “This defendant on the 30th day of June, 1910, became Tax Collector of Polk County, Florida, 'and being inexperienced in land matters and book-keeping, he employed the complainant,qualified' and capable to keep the records of said office, the complainant then and there represent
The defendant C. L. Wilson answered “that he is interested in the real estate described in said bill of complaint, said lands having been conveyed to him by .the said F. M. Lanier and wife Rosa Lee Lanier by warranty deed.
“Further answering this defendant says that he knows nothing of the indebtedness alleged in said bill of complaint, except as alleged, and prays strict proof thereof on the part of the complainant.”
Complainant excepted to and moved to strike the last paragraph of the answer of F. M. Lanier because:
“1. Said answer is irrelevant, immaterial and constitutes no defence to this bill of complaint.
“2. Said answer is not allowed by law.
“3. Because said answer tends to embarrass a fair and impartial trial of this cause.”
The court overruled the exceptions and motion to strike, and the complainant appealed from the interlocutory order.
Sections 1 and 3 of Chapter 6907, Acts of 1915, “relat
Statutes of set-off, being regarded as remedial acts, tending to prevent circuity of action and thus settle controversies speedily, are to be liberally construed. 25 Am. & Eng. Ency. Law (2nd ed.) 491; 34 Cyc. 629.
In suits eso contractu a set-off is not allowed for damages growing out of a tort. Robinson v. L’Engle, 13 Fla. 482; Matthews v. Lindsay, 20 Fla. 962; Griffing Bros. Co. v. Winfield, 53 Fla. 589, 43 South. Rep. 687; Brash v. Ehrman, 56 Fla. 153, 47 South. Rep. 937. But where a tort as for the conversion of money may be waived and a suit brought on an implied promise to pay a definite sum of money, it may be a proper matter for a set-off in an action eso contractu. See Hall v. Penny, 13 Fla. 621; Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. Rep. 835, 8 Ann. Cas. 736.
In this suit to forecolse a mortgage the defendant by answer sets up a tort, i. e. the conversion of money, in which the defendant may have a special if not an absolute
The averments of the answer are in effect that the complainant while acting as his, the defendant’s agent and employee received and embezzled large sums of money that belonged to the State and County for taxes paid to him, the defendant, as Tax Collector through his said agent the complainant, and the answer prays in effect that an accounting shall be made by the complainant for the said moneys of the State and County so embezzzled by him, and that upon such accounting the moneys found thereon to have been embezzled by the complainant may be applied as a set-off to the payment of the individual personal indebtedness of the defendant to the complainant, without any showing that he, the defendant, has in any manner made the amount of the complainant’s embezzlements good to the State and County by payment, adjustment or otherwise, or that he purposes by the set-off pleaded to clear his property of the mortgage encumbrance sought to be foreclosed so as to use it in paying to the State and County the amount of such embezzlement for which he is legally liable, so as to entitle him, the defendant, to have said moneys, admittedly belonging to the State and County, applied to the payment of his own individual personal indebtedness. Without some such showing the answer in effect says that the complainant as my agent has embezzled moneys belonging too the State and County paid to me as Tax Collector through him as my employee and agent, and I desire the court to force him, the complainant, to account to me for said moneys
Under the statute the chancellor on the motion to strike may have required an amendment of the answer to show a right of set-off and in default thereof grant the motion to strike.
The order overruling the motion to strike is reversed with directions to proceed in accordance with this opinion.