66 Fla. 259 | Fla. | 1913
Stearns Lumber & Export Co., brought an action at law against E. P. Holmes and Fred Herrick, partners under the firm name of Holmes & Herrick, whereby it was sought to recover damages alleged to have been caused the plaintiff by the failure of the defendants to comply with the terms of a certain contract relating to the sale and delivery of lumber by plaintiff to defendants. The questions presented here for determination relate exclusively to certain rulings made on the pleadings. Both the plaintiff and defendants would seem to have been afforded every opportunity for perfecting and filing their respective pleadings, and no complaint is made on that score. The declaration was amended and successive sets of pleas were filed. Finally, the following proceedings were had:
Feb. 28th, 1913.’ E. C. Evans, Foreman.
Thereupon it is considered by the court that the plaintiff do have and recover of the defendants the foregoing sum of One Thousand (fl,000) Dollars together with the sum of Five 01/100 Dollars, here taxed as its costs in this behalf sustained all to be levied o.f the goods, chattels, lands and tenements of the defendants, and to the plaintiff rendered, and that execution do issue therefor.
Feb. 2Sth, 1913. J. Emmet Wolfe, Judge.”
Tie defendants seek to test this judgment by writ of error and have assigned fourteen errors, though all are not insisted upon. We have carefully read the transcript and the able briefs filed by the respective parties and have examined the authorities cited to us. We do not think it necessary to set out all of the pleadings or to discuss the various rulings complained of in detail. The real point involved is the construction of the contract entered into by the plaintiff and the defendants. The determination of that will render a discussion of the assignments separately unnecessary.
Very much condensed, the second count of the declaration, upon which part of the recovery was bas^d, alleges that the defendants were due the nlaintiff tbe sum of $400.00, the remainder of the purchase price for a certain cargo of lumber of about 1,000,000 feet, at a certain agreed
We think it well to copy the fourth amended count in full, which is as follows:
“4. That prior to the institution of this suit defendants agreed to purchase from plaintiff a certain cargo of lumber of about 1,000,000 feet at certain prices then and there agreed upon to be delivered free alongside vessel stream-Pensacola, Florida for Feb.-March 1912 delivery, and defendants further agreed by said contract to give plaintiff not less than ten days notice prior to arrival of steamer taking such cargo, and to supply plaintiff with a sufficient amount of inspectors to load lighters as rapidly as plaintiffs should require 7 to 10 days before arrival of such steamer, and further agreed that in view of the fact that the shipment was named as Feb.-Mar., delivery as aforesaid they would keep plaintiff posted as to the exact charter or due date of vessel taking such cargo. That at the time of making said contract the parties knew that the lumber would be procured by plaintiff from mills at Bag dad, Florida; that said lumber would be inspected and loaded on lighters at said Bagdad, Fla., and transported therefrom by water a distance of thirty (30) miles, to, the
These two amended counts were demurred to on various and sundry grounds, which demurrer was overruled, and
We do not discuss the other assignments urged before us, but we have given them careful consideration and no reversible errors are made to appear to us.
* Judgment affirmed.