73 Fla. 810 | Fla. | 1917
The. plaintiff in error brought suit in the Circuit Court for Dade County against R. E. Hall upon three promissory notes, each dated March 20th, 1908.
To this declaration the defendant interposed two pleas, which in substance averred that the notes were given for the purchase of an “Engine, pump and other machinery” to be. set up and water supplied on the land of defendant on or before September, A. D. 1908.. It was averred, in. substance, that the defendant agreed to purchase from the International Harvester Company an irrigating plant consisting of engine, pump and other machinery to be set up and water supplied on, defendant’s land, and that an “appliance would be furnished which would be attached to said machinery, so that the. engineer in charge could turn all the pipes at one time, or with drum attached to engine the pipes would be turned automatically.” The first plea averred that the machinery was not installed and water flowing as agreed, and that the defendant relying upon the promises made by the agents of the International Harvester Company planted a crop on the lands and the crops failed on account of the unsatisfactory manner in which the machinery was set up, and the lack of parts which was agreed to be furnished, and defendant lost his entire crop and the. machinery and irrigating plant was worthless' to him because the promise of the agents of the company had not been complied with.
The second plea averred that among other promises the agents represented that the irrigating plant would be
To these pleas the following replication was filed: “Comes plaintiff and for a third replication to defendant’s first and second additional pleas, says that the pump, engine, piping and fittings for which the notes sued on were given in payment were delivered to defendant in the fall of 1907 and said machinery had been set up and was in full operation and use by defendant more than four and a half months béfore the notes sued on in this cause were executed and delivered by defendant to the International Harvester Company of America, and that at the time defendant executed said notes he had, or by the exercise. of reasonable diligence could have had, full knowledge that the said machinery had been set up and water supplied on or before November 1st, 1907, and had full knowledge that no appliances had .been furnished to be attached to said machinery so that the engineer in charge
According to a well established rule of pleading, allegations or averments that are material to the cause of action or defense which are not denied by the opposite party, are for the purpose of the trial considered to be not in issue. The reason for the rule is that the parties may by their pleadings produce a single issue which' is the object of the. common law system of pleading. If an immaterial issue is tendered it may be accepted and the parties go to trial upon it. See Cotton States Belting & Supply Co. v. Florida R. Co., 69 Fla. 52, 67 South. Rep. 568; New York Life Ins. Co. v. Mills, 51 Fla. 256, 41 South Rep. 603; Evans v. Kloeppe, decided at the June Term, 1916, 73 South. Rep. 180.
The replication ignored the averments of the two pleas as to the consideration for which the notes were given, and that in the agreement for the purchase of .the machinery it was provided that an appliance would be furnished which would be attached to the machinery so that the engineer could turn all the pipes at one time, or with drum attached to engine the pipes could be turned automatically. It also ignored the averments as to the failure to comply with such agreement, and averred the fact to be that the machinery, pump, engine, pipes and fittings, had been set up and was in full operation and use by the defendant for more than four months before the notes sued on were executed and delivered, and that the defendant had thereby waived the alleged defects in the
The defendant accepted the-issue and the parties went to trial.
It is contended by plaintiff in error that there was evidence to support the issue of fact tendered by the replication, viz, that the notes were executed and delivered four months after the machinery, pump, engine, pipes and fittings, had been set up by the seller on the defendant’s land, and was in full operation and use by defendant.
The court, however, instructed the jury to return a verdict for the defendant, which they did. A judgment was entered thereon', to which the writ of error was taken.
The trial court should not withdraw a case from the jury by giving a peremptory instruction for either party unless there is no evidence before the court that could in law support a verdict contrary to the one directed by the court. If there, is evidence to support a different verdict, or the evidence is conflicting upon the issue on which the cause is tried, the court errs if he withdraws from the jury the consideration of such evidence, thereby usurping their province and substituting his judgment upon the facts for theirs. McKinnon v. Johnson, 57 Fla. 120, 48 South. Rep. 910; Bass v. Ramos, 58 Fla. 161, 50 South. Rep. 945; Wood v. Gipson, 63 Fla. 316, 58 South Rep. 364.
The principle announced above was expressed in the following language in the. cases cited: “A charge direct
The parties are entitled to a jury trial, and where there is evidence, received in behalf of one party to support the issue, and it is legally sufficient, he is deprived of his jury trial if the court directs a verdict for the other party. Although after verdict rendered, the court may set it aside and grant a new trial and such order be sustained on writ of error, it does not follow that in such case a directed verdict for the party upon whose motion the new trial was granted would have been proper. See the discussion in Carney v. Stringfellow et al., decided at the present term.
It is admitted by defendant in error in the briefs of counsel that the single, issue at which the parties arrived was : “Had the ‘plant’ been in full operation for the time averred in the replication when the notes were executed and delivered by the defendant?” The word “full” was used as an adjective, and carries the meaning of “complete,” “entire,” “perfect” in describing the noun “operation.” See Webster’s New-International Dictionary. As applied to the machinery, or its operation, we think the word as used conveyed the meaning that the machinery was complete in all its essential parts, and that it was capable of perfect operation.
We think that the testimony of Edwin Nelson, who said that “the machinery and piping and everything was
Browne, C. J., and Taylor, Shackleford and Whitfield, JJ., concur.