39 Fla. 55 | Fla. | 1897
(after ninthly the fants):
On the trial plaintiff offered in evidence the contract, a copy of which is given in full in the statement of facts, which was objected to by defendant upon the ground that “it is not the contract sued on; the contract offered in evidence having a’ restriction in it as to the amount of money to be furnished by the defendant, while the contract sued upon has not.” It was admitted in evidence, whereupon deféndant moved to strike it out because “it purports to be a contract between Jacob Bueki and Charles L. Bucki and Max Seitz, and not a contract between Max Seitz and.
Several assignments of error are based upon rulings •of the court admitting evidence objected to. We do not deem it necessary to consider these assignments, .as the judgment must be reversed on other grounds, and the questions involved will not necessarily arise on another trial. It is doubtful if these exceptions •can be considered, because the bill of exceptions does not show which party excepted to the rulings. The •objections and exceptions appear in this form: “Objection” (stating the grounds); “objection overruled,
The first assignment of error is based upon the refusal of the court to grant a new trial. This motion embraces several grounds, but as appellant argues only one of them, viz: The verdict was contrary to law and the weight of the evidence, we will consider that one only, and treat all others as abandoned. The plaintiff bases his suit upon a written contract entered into between him and the defendant, and, in obedience to Common Law Rule 14, filed with the declaration this written contract. The declaration alleged an -agreement on the part of defendant to furnish all requisite capital, implements, machinery and labor to carry on the business of mining; and the only breach ■of the contract alleged in the declaration was that about August 30th, 1891, defendant interrupted and prevented plaintiff from further prosecution of the business of mining, and declined to furnish any more capital or implements to carry on the business, although defendant was entirely satisfied with the quantity and quality of the phosphate mined. It is true there was no plea to the declaration equivalent to the .general issue, because the first plea was inapplicable -to this action (Bucki vs. McKinnon, 37 Fla. 391, 20 South Rep. 540), and the second plea was in denial only of the alleged breach of the contract; but the third and fourth pleas of defendant alleged that he
The plaintiff on the trial introduced evidence tending to show that according to an oral agreement between him and the defendant there was no limitation upon the amount of capital, machinery, etc., to be furnished by the defendant, and that the limitation embraced in the words italicised in the contract set forth in the statement of facts was inserted by the-defendant subsequent to the time the contract was signed by plaintiff, and that plaintiff never agreed to abide by such limitation, and immediately notfied de
There was no effort made by plaintiff to prove any oral contract until after defendant had offered evidence that the original oral agreement included a provision limiting his liability similar to the one in the written contract. Plaintiff then offered evidence in rebuttal to show that something had been said in the negotiations previous to the drawing of the written contract about the cost of mining the first cargo not •exceeding §2,500, but that when the terms of the contract were given to the attorney for the purpose of enabling him to prepare it nothing was said about this, and that no such stipulation was in the written contract when plaintiff signed it. The declaration was perhaps broad enough to admit evidence of the oral contract as a basis for recovery, but having filed the written contract with his declaration, offered it in evidence, made no attempt to prove any other contract -except in rebuttal, the plaintiff must recover, if at all,
For the reasons given the judgment of the court below is reversed and a new trial awarded.