Edgerton v. West

43 Fla. 133 | Fla. | 1901

Mabry J.

(after stating the facts.)

It appears from the transcript of the record that in addition to- the two-pleas shown in the statement, defendant, Edgerton, filed a plea to set-off that was ruled out on demurrer, and that at the trial he asked leave to file an exhibited plea on equitable grounds which was denied by the court. We are of opinion that the court properly sustained the demurrer to the plea of set-off and correctly rejected the plea on equitable grounds for defects in each plea, and that no ground for a reversal of the judgment exists on account of such rulings. The matters sought to be set up in the equitable plea are not properly the subject of such a plea, and our rtiling is confined to this point.

Defendant below applied for a continuance of the cause on the ground of an absent witness and this application was denied. We do not determine the correctness of this ruling as the judgment must be reversed on another ground, and it was an incident of the trial that may not happen again.

We are of opinion that the court erred in its ruling on the offered testimony shown by the statement. It appears that the court excluded the offered evidence on the ground that the plaintiff, Frankie K. West, was a married woman and not bound by the alleged payment of the debt sued on in any property other than cash money. There is no sufficient showing in the entire record of the case, from the praecipe to and including the judgment, that plaintiff, Frankie K. West, was a married woman. The only thing that has any tendency to show this fact is the allegation that the several sums of money loaned as alleged in the first count of the declaration were the separate property of plaintiff, Frankie K. West. We can not assume from this allegation in the declaration, in the absence of any other showing, that Frankie K. West was a married woman. The sums alleged in the first count of the declaration may have been her separate property and still she may not have been a married woman. The allegation made of separate property does not of itself include the further fact that Frankie K. West was a married woman, and in view of an entire absence of any showing of such fact we can not assume it in determining the correctness of the ruling in excluding the offered testimony.

It is argued for defendants in error that under the pleas upon which issues were joined the defendant below could not show payment in anything but money. The ruling made would seem to indicate that this view was entertained by the Circuit Court. We hold that under a plea of payment, evidence may be given of payment in money, or in any other mode agreed upon by the parties, provided it is an executed transaction, and in case of payment in goods and chattels there be delivery by the debtor and an acceptance by the creditor so as to pass title to the property and be accepted in discharge of the debt. In the case of Salomon v. Pioneer Co-operative Co., 21 Fla. 374, there was a declaration in common counts on an open account, and it was held a good defence in a plea to allege that before action brought defendant had discharged and satisfied plaintiff’s claim by giving a draft for the full amount on a third party and which was accepted by plaintiff in full payment and satisfaction of the claim. It was decided in this case that the intention 'of the parties as to whether the draft was given and accepted in payment was a controlling element in the issue, and a question of fact for the jury. The rule we have stated above in cases where goods or chattels are by agreement of the parties actually delivered and accepted in satisfaction and payment of a debt is within the principle announced in the case cited and amply sustained by other authorities. Bush v. Sproat, 43 Ark. 416; Thompson v. Kellogg 23 Mo. 281; Edmunds v. Black, 13 Wash. 490, 43 Pac. Rep. 330; Farmers’ and Citizens’ Bank v. Sherman, 33 N. Y. 69; Steiner v. Erie Dime Savings & Loan Co., 98 Pa. St. 591; Dodge v. Swazey, 35 Me. 535; Whittington v. Roberts, 4 Monroe 173; Thorne v. Smith, 2 Eng. L .& E. Rep. 301. We think testimony tending to prove that defendant, Edgerton, fully paid plaintiff, Frankie K. West, not only in cash but merchandise, and by paying debts for her at her request, and that she admitted, or consented, that an account at defendant’s store might go in payment of the debt sued on, should have been permitted under the plea of payment, and that it was error to exclude it. Payment to her would of course discharge the demands in the first count of the declaration as being her separate property, and it may be that payment to her would likewise discharge joint demands due her and her co-plaintiff alleged in other counts. As stated above we do not assume in the conclusion reached by us that Frankie K. West was a married woman and do not now decide whether any different result would follow if the fact of her coverture appeared.

The judgment will be reversed, and it is so ordered.