39 Fla. 452 | Fla. | 1897
This is one of the many cases in this court wherein we are left to make an independent investigation for authorities in support of the judgment of the court below, without the aid of a brief or argument on the part of the appellee. The delicate compliment so often paid to our ability and industry by these failures on the part of counsel for appellees to brief cases in this court, we can not fail to appreciate, nevertheless we suggest to litigants and counsel that, owing to the present congested state of our docket, and our earnest endeavors to rapidly dispose of the mass of cases now before us, we are willing to renounce these implied compliments, for a time at least, in order that we may have the benefit of counsel’s investigations, to aid us in performing these responsible duties. Under our rules a party appellant is in many ways punished for his-failure to brief his case, and the rules require an appellee to file briefs with us, though no penalty is-named for his failure to do so. We think a moment’s reflection on the part of members of the profession will convince them that their duty to this court, their clients and the State, requires that in all cases here-represented by them they should brief the questions involved on appeal, not only because it may aid to se
I. We do not think that the objections made to the oral testimony offered in the court below were tenable. This evidence did not in any respect tend to change,. alter or add to the deeds, mortgages and notes offered in evidence. The legal effect of each of these papers was the same, with or without the oral testimony. It neither took from, nor added to, these papers in the slightest degree, but was entirely consistent therewith.. Indeed the written instruments were merely executed in pursuance of the verbal agreement, and in part performance thereof, and they, all except the notes, were of that character which were required by the statute of frauds to be written, because conveying real estate. The papers, neither separately nor combined, purported to state all the terms of the agreement between the plaintiff and defendant. As a matter of fact, the notes and mortgages were not contracts between the plaintiff and the defendant, but were contracts between the plaintiff and the defendant on the one part, and a third party on the other. These papers purported to show the contract between the plaintiff and defendant to and with a third person, but not as between themselves. The rule excluding parol evidence does not apply to cases where the original contract was verbal and entire, and a part only of it has been reduced to writing. Where, therefore, the writings do not purport to contain the entire.
II. It is a familiar principle of law that an action of -assumpsit for money paid is maintainable in every ■case where the plaintiff has paid money to a third party at the request, express or implied, of the defendant, and with an understanding, express or implied, on his part to repay it. 2 Chitty on Contracts, pages 879, 880; 4 Wait’s Actions and Defenses, sec. 1, p. 449. True, the payment must have been made to the use of the defendant (2 Chitty on Contracts, p. 881); but if money has been paid by the plaintiff in -discharge of a liability which he has taken upon him-•self at defendant’s request, or by his authority, such payment will in law be one at defendant’s request and -to his use. 2 Chitty on Contracts, p. 882; Brittain vs. Lloyd, 14 M. & W. 762; 4 Wait’s Actions and Defenses, p. 449. And as the law, in the absence of an -express agreement, implies a promise of indemnity •on the part of a principal to his surety, this action is ¿maintainable in every case where a surety pays the
The court below ruled correctly in excluding from evidence the written agreement between defendant and plaintiff and W. N. Coneley, as it tended to prove a.
The judgment is reversed and a new trial granted.
