112 So. 2d 394 | Fla. Dist. Ct. App. | 1959
Appellant, who was defendant below, seeks reversal of a judgment on a promissory note, which was entered against it in the amount of $13,175.13 plus attorney’s fees and costs in the circuit court in Dade County.
The defendant’s answer included a counterclaim asserting want of consideration. That defense, mistakenly included in the counterclaim, was entitled to be treated as though it had properly been set forth in the answer as an affirmative defense.
The trial court granted plaintiff’s motion for judgment on the pleadings as to liability,
In so holding the learned trial judge was in error. Section 52.08, Fla.Stat, F.S. A., relieves the plaintiff in such an action of the burden of proving consideration except when confronted by a sworn denial thereof, but there is nothing in the statute which deprives a defendant from asserting want of consideration as an affirmative defense (by an answer not under oath) and assuming the burden of establishing such affirmative defense by a preponderance of the evidence. See Towles v. Azar, 112 Fla. 405, 150 So. 734.
Thus the pleadings presented an issue relating to consideration on which the defendant had the burden of establishing a want of consideration by a preponderance of the evidence. On that record, judgment on the pleadings was improper. See Paradise Pools, Inc. v. Genauer, Fla.App.1958, 104 So.2d 860. Holding as we do, there is no need now to rule on other assignments of error. The judgment is reversed and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
. Rule 1.8(d) of 1954 Fla.RuIes of Civil Procedure, 30 F.S.A. so provides. The rule is as follows: “(d) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and