36 Fla. 183 | Fla. | 1895
Counsel for appellant say in their brief that but two questions arise on the assignment of error made: the first being whether the written agreement, found in the statement, imports a promise to pay interest from December 19th, 1889, or only from the date upon which the bank paid the checks; and the second is, whether a national bank can recover the consideration for an executed contract or guaranty. The case is presented here by both parties as if the bill of particulars, including the written agreement, was incorporated into and made a part of each count of the declaration. The record shows that the declaration was so presented and considered in the Circuit Court. The order sustaining the demurrer recites that the parties waived all questions as to misjoinder of parties defendant, and agreed
The cause of action, or copy thereof, required by the statute to be 'filed with the declaration is to apprise-the defendant of the nature and extent of the demand against him, in order that he may plead with greater certainty, and ordinarily such cause of action constitutes no part of the declaration. Waterman vs. Mattair, 5 Fla. 211; Robinson vs. Dibble, 17 Fla. 457; Wilson vs. Frienburg, 22 Fla. 114; Columbia County vs. Branch, 31 Fla. 62, 12 South. Rep. 650. Each-count in the declaration before us refers to the bill of particulars as being made a part thereof, and assuming that a bill of particulars can in the way indicated become incorporated as a part of the declaration, and as it was presented to and considered by the Circuit Court in that light, we will so consider it here, though not-committing ourselves to the approval of such practice.
The plaintiff sued only for interest, and the interest claimed under each count of the declaration is on sums of money paid by plaintiff to the viaduct committee on account of defendants from the date of the agreement, conceded to be the basis of the cause of action against them, until the times of repayment of the money to plaintiff. It is alleged that plaintiff paid the sum of $16,000, being $8,000 for each of the defendants, in various sums on the dates mentioned in the bill of particulars, and although defendants have-reimbursed plaintiff for the principal of the money so paid, they have refused to pay the interest upon the sums so advanced from the date of the agreement to* dates of reimbursement. It is not alleged that any time elapsed after payment by plaintiff of the sums mentioned in the bill of particulars before the refunding of the same by defendants, so that the demand of.
This being the case, no cause of action is shown against defendants by the declaration as presented