53 Fla. 392 | Fla. | 1907
This is an action of assumpsit upon a promissory note instituted by the defendants in error against the plaintiff in error in the circuit court for DjeSoto county. The result thereof was a judgment for the plaintiffs against the defendant for the sum of $692.30, which defendant seeks to have reviewed here by writ of error, returnable to the present term. The declaration alleges in substance that on the first day of July, 1902, defendant executed his promissory note to W. Whidden or order for the sum of $1,000, payable with interest from date two years after date, that, prior to the maturity thereof, Whidden endorsed and transferred the note to plaintiffs, Forrester & Burton and M. L. Williams, and that also, prior to maturity, M. L. Williams assigned his interest in the note to Robert B. Campbell; that.no part of the note had been paid, although the time for the'payment thereof had elapsed. Plaintiffs claimed $2,500 damages, including a reasonable attorney’s fee, for which the note provided.
Defendant filed two pleas to the declaration, the first to the effect “that long before the bringing of this suit he fully paid and satisfied the one-half undivided interest
Plaintiffs interposed a demurrer to both pleas, which was sustained and deféndant given time in which to plead over. On the 3rd day of April, 1905, defendant filed his amended pleas, to which plaintiffs also demurred, which demurrer was sustained and the defendant allowed thirty days in which to plead over. On the 23rd day of May, 1905, defendant filed his second set of amended pleas, to which plaintiffs interposed another demurrer, which was also sustained, and defendant allowed ten days in which to plead over. On the 17th day of October," 1905, defendant filed his third set of amended pleas, to which a demurrer interposed by plaintiffs was also sustained, i and it was ordered that defendant be not allowed
The sustaining of the several demurrers to defendant’s pleas, except the sustaining of the demurrers to the first and second sets of amended pleas, which rulings are not assigned as errors, forms the basis of the first four assignments of error.
We see no useful purpose to be accomplished by setting out these different pleas, as they are all infected by practically the same vice, which was repeatedly pointed out by the court in the orders made on the demurrers, that is there is a lack of mutuality in the notes identified as “Exhibits A, B & C,” which defendant sought by his pleas to set off against the claim of plaintiffs. Other defects also existed in some of the pleas, which the court pointed out. It is clear that the notes identified as “Exhibits A, B & G” were all non-negotiable , instruments. The case of Birmingham Trust and Savings Co. v. Jackson County Mill Co., 41 Fla. 498, 27 South. Rep. 43, is directly in point, and we refer to the discussion therein and the authorities there cited. Moulie v. Hughes, 28 Fla. 617,10 South. Rep. 94; Gonzales v. DeFuniak Havana Tobacco Co., 41 Fla. 471, 26 South. Rep. 1012, will also prove instructive.
It may Jbe that the grounds of the respective demurrers, or at least some of such grounds, were not as clear and specific as they should have been, and it may well be that
The fourth assignment is that “the court erred in entering judgment upon the demurrer to- the fourth amended plea of the defendant.” It is contended in support of this assignment that in making the order upon the demurrer to the second set of amended pleas that the same was sustained only in so far as it applied to the notes classified as Exhibits A, B & C, which left that portion of such pleas seeking to have the benefit of the defense as a set off of the note designated as Exhibit D still standing, therefore it was error to enter judgment. This position is untenable for the reason that a demurrer to a plea goes to the whole of it and must be either sustained or overruled as an entirety. See Muller v. Ocala Foundry and Machine Works, 49 Fla. 189, 38 South. Rep. 64; 6 Ency. of Pl. & Pr., 301 and authorities cited in notes 1 and 2. It is true that in the order sustaining the demurrer to the second set of amended pleas the court made use of the. following language : “Demurrer sustained as to pleas of set-off covering the notes classified as Exhibits A, B & C, on the ground that they are not mutual claims or demands, and not the subject of set-off in this suit.- Defendant allowed ten days in which to plead over.” This expression was unfortunate and, technically speaking, was not correct, as we have
After the court had sustained the demurrer to the last set of amended pleas and ordered judgment entered against defendant still another plea was filed by defendant, without leave from the court, which, on motion of
The seventh assignment is based on the giving of the following charge to the jury by the court of its own motion : “In the note admitted by the plaintiffs herein as an off-set, even though it provided for an attorney’s fee, the defendant can’t be allowed to prove an off-set for an attorney’s fee, and you will find an attorney’s fee for the plaintiffs for the sum,of $150.00.”
The only contention made here in support of this assignment is that the charge was erroneous because it refused to allow defendant to prove and have the benefit of the attorney’s fee provided for in the note designated as Exhibit D. It is sufficient to say none of the evidence is incorporated in the bill of exceptions, and neither doei such bill purport to contain all the charges given at the trial, as is provided by Special Rule 3, adopted March 2t 1905, found on page 22 of Rules prefixed to 51 Fla. In the absence of the evidence and of all the charges given, we cannot consider this assignment further than to determine that no error appears on the face of the charge. Every presumption is in favor of the correctness of the
We have considered all the assignments which have been urged before us. Finding no reversible error, the judgment must be affirmed, and it is so ordered.