Lead Opinion
Thе defendants in error instituted distress proceedings in the Circuit Court of Dade County, for the collection of rent alleged to be due them. As a basis for issuing the distress warrant an affidavit was filed. This affidavit did not aver that the amount of rent claimed was due by the East Coast Stores Inc. and the Southern Stores Corporation, jointly. The language of the first paragraph of the affidavit indicates that thе East Coast Stores Inc. owed the amount claimed; while the second paragraph avers that the Southern Stores Corporation "assumed the liability for and is now responsible for the payment of the rent" by virtue of taking over the assets of East Coаst Stores Inc., "by purchase," and the assumption of the liabilities of *27 said corporation, from which it may be inferred that the rent wаs due by the Southern Stores Corporation. The affidavit also fails to show whether the rent is payable in money or other thing of value, and it is not shown that the Southern Stores Corporation entered into the possession of the described property. Thе warrant directs the officer to levy upon the property of both corporations that may be liable for rent and сollect the sum alleged to be due. The plaintiffs in error jointly and severally moved the court to quash and dissolve the warrant, whiсh motion was overruled by the court. Thereupon they filed a traverse affidavit and the cause was tried before a jury. The fоllowing verdict was rendered.
"We, the Jury, find for the plaintiffs and fix the amount of rent due from defendants in the principal sum of Seven thousаnd five hundred dollars, and interest thereon in the amount of Four Hundred Dollars, total $7900.00 Dollars.
"So say we all."
Whereupon judgment was entered awarding a recovery against "the defendants, East Coast Stores, Inc., and Southern Stores Corporation," and also a judgment against thе United States Fidelity and Guaranty Co., as surety upon the forthcoming bond.
*28"Any person to whom any rent or money for advances may be due, * * * may make and file in the court in the county where the land lies, having jurisdiction of the amount claimed, an affidavit stating the amоunt or quality and value of the rent due for such land, or the advances, and whether it or they are payable in money, cottоn or other agricultural product or thing." Section 5423 (3559) Compiled General Laws of Florida, 1927. "Upon the filing of such affidavit, the clerk, * * * shаll issue a distress warrant," etc. Section 5424 (3560) Compiled General Laws of Florida, 1927.
It has been held here that the affidavit stands in lieu of and performs the function of a declaration. Smoot v. Strauss,
A failure to properly object to a declaration or defensive plеading that omits allegations of substantive facts which are essential to a right of action or matter of defense and which аre not implied in, or inferable from, those alleged, is not a waiver of objections that might have been based upon the оmission of such facts in the pleading and raised by demurrer or plea. Florida C. P. Ry. Co. v. Ashmore,
In 36 C.J. 369-70, we find that
"A person may become liable for rent only by privity of contract or by privity of estate; and unless such privity exists between the lessor and an occupant of land entering under the tenant, such occupant cannоt *29 be held personally liable for the rent. * * * A third person may, by contract based on a valid consideration, entered into аfter the execution of the lease, become liable for the rent. So also a third person may by substitution, take the plаce of the tenant so as to be liable for the rent."
The lease was for a period of five years beginning February 15th, 1926, and therefore came within the provisions of Section 5660 (3787) Compiled General Laws of Florida, 1927, and a valid assignment of the leasе would have been required to be in writing. No such assignment is shown.
No assignment of the leasehold estate having been shown by the affidavit, it follows that the Southern Stores Corporation has not been shown to be liable for the said rent through privity of estate.
It therefore behooves us to inquire if there was a privity of contract between the lessors (defendants in error) and the Southern Storеs Corporation in the sense that the corporation will be chargeable to the lessors with the rents to accrue under the lease. Sometimes "privity in this sense is regarded as existing whenever the intention of the contract is to confer a benеfit upon the third person," and also "it is sometimes said that the law creates the privity between the parties * * *. The explanation which meets the actual facts of the case is that if the contract is intended for the benefit of a third person, it is not nеcessary that there should be any privity between the beneficiary and the promisor." 4 Page on Contracts (2d Ed.) 4211. This latter view has found favor in this Court. Wright v. Terry,
The averment in the affidavit that, "Southern Stores Corporation, by purchase, took over all the assets оf the East Coast Stores, Inc. and assumed all the liabilities thereof," etc., is not sufficient to show privity of contract between Cuthbеrt and wife and Southern Stores Corporation.
The defendants in error can recover only upon the case made by the affidavit. Foye Tie Timber Co. vs. Jackson,
Inasmuch as the affidavit fails to show that the plaintiffs in error were jointly liable for rent, to the defendants in error, the joint judgment against the plaintiff's in error cannot stand. Webster v. Barnett,
In the absence of assignments of errоr raising the particular questions, this Court can consider fundamental errors appearing on the face of the recоrd and reverse the cause therefor. Eddins v. Tweddle,
The judgment is reversed and the cause remanded for further proceedings in аccordance with the views herein expressed.
Addendum
The record in this cause having been considered by the Court, and the forеgoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered and ordered by the Court that the judgment of the court below be, and the same is hereby, reversed and the cause is remanded for further *31 proceedings in accordance with the views herein expressed.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.