49 Fla. 347 | Fla. | 1905
(after stating the facts.)
An appeal in chancery opens the whole case for the consideration of the appellate court, and a cross-appeal is not essential to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights. Parken v. Salford, 48 Fla. ..., 37 South. Rep. 567, and authorities there cited.
In the instant case both the appellant and the appellees are urging a reversal of the decree, though upon entirely different grounds and for dissimilar reasons.
It is contended on behalf of the appellees that the chancellor erred in denying their motion, in overruling their demurrer, in granting the petition for a rehearing
The second part of Sec. 1745 of the Rev. Stats. of 1892, gives to the mechanic or artisan who has acquired a lien upon a chattel the right to sell the same at public auction, as therein provided, without any judicial proceedings, but it is optional, with the mechanic or artisan to pursue this course, or to elect one of the other remedies provided by statute. As alleged in the bill, the appellant completed the work and labor upon the machinery on the 15th day of September, 1902, and filed its bill of complaint for the enforcement of its lien on the 2nd day of October, 1902, long before the period of three months specified in said sections 1744 and 1745 had expired, thereby clearly evincing that appellant had elected to pursue its remedy in equity, as given not only by said section 1744 but by section 1510 of the Revised Statutes of 1892 as well. That appellant had the right to make this election and to proceed in equity see Hathorne v. Panama Park Co., 44 Fla. 194, 32 South. Rep. 812; Futch v. Adams, 47 Fla. ..., 36 South. Rep. 575. It follows that no error was committed by the chancellor either in denying the motion or in overruling the demurrer.
Before taking up for discussion the other contentions made by the respective parties, it seems advisable to consider just what issues were presented by the plea which was filed to the entire bill and the answer purporting expressly to be filed in support thereof, and the replications filed to the plea and answer. It will be readily observed that the answer not only contains maTfer in support of the plea, but in addition thereto contains more than is applicable in support thereof, embracing in fact, other and distinct defenses to the whole bill. The rule seems
Having determined that the plea in the case now before us for consideration was not overruled by the answer, for the reasons which we have stated, before proceeding to consider the evidence.and the decrees it becomes necessary to determine upon whom, the burden of proof ¿rested. The general rule is that when a replication has been filed to a plea, it is incumbent upon the defendant to prove the facts which the plea suggests. 1 Dan. Ch. Pl. & Pr. (6th Amer. ed.) 698; Dows v. McMichael, 6 Paige 139; Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. Rep. 534; Story’s Eq. Pl. (10th ed.) section 697; Fletcher’s Pl. & Pr. section 279; 1 Foster’s Fed. Pr. (3rd ed.) section 142; Stead’s Exrs. v. Course, 4 Cranch 403; United States v. California & O. Land Co., 148 U. S. 31, 13 Sup. Ct. Rep. 458; Beames’ Pleas in Eq. 325. See especially Langdell’s Eq. PI. (2nd ed.) sections 101 and 108, making a distinction in applying this rule between pure or affirmative pleas and negative pleas. However, the plea filed in the instant case could not be held to be a negative plea, and, therefore, we are of the opinion that it was incumbent upon the appellees to prove the matters contained in their plea. As to the matters contained in the answer which were not in support of the plea, but which were responsive to the bill, the burden was upon the appellant to prove the allegations in its bill. As the answer was under oath, the oath thereto not having been waived, it further follows that the sworn answer was evidence in favor of the appellees as to those matters contained therein which were directly and positively responsive to .the material allegations of
Referring to the plea interposed to the whole bill by the appellees, it will be seen that it admitted an indebtedness from appellees to apellant -of the sum of $285.00 for ali the material furnished and for all the labor and services done and bestowed by appellant in the repairing of the said machinery, that said, sum was the contract price agreed upon between appellant and appellees for the furnishing ■ of said material and the performance of the labor in overhauling, repairing and putting in the best condition the locomotive or dummy engine, including the boiler thereto belonging and a part thereof; that on or about the first day of October, 1902, prior to- the institution of the suit, appellees tendered and offered to pay to appellant said sum of money, and at the time of said tender demanded that appellant should surrender the possession of said machinery, which tender and demand were refused by appellant; that in the' month of February, 1903, appellees made a like demand upon appellant, which was again refused, and that by reason of said matters and of appellant’s retaining possession of the machinery for the period of three months and over the lien of appellant thereon had become extinguished and discharged, and appellant could not lawfully institute or maintain its suit in equity for the enforcement of its lien.
The remaining portions of the answer are to the effect that appellant had not done and performed the work or any part thereof, as alleged, had no performed or complied with its contract, as alleged, but had failed to put the dummy engine in the best running order, and had failed to complete the work within a reasonable time. The answer further averred that after the 15th day of September, 1902, appellees had requested and 'demanded of appellant that they be allowed to inspect, examine and test the dummy engine and the work and materials alleged to have been done thereon, which request and demand appellant had refused, and that' by reason of' appellant’s retaining possession of the machinery appellees had been compelled to pay the sum' of $150.00 per month for the, hire of an engine in place of the one'held by appellant^ from the 15th day of July,' 1902, üp to the time of the filing of the answer, during which period appellant had
Before entering into a discussion of the evidence we call attention to two facts, first, that the answer was not filed until the 14th day of July, 1903, some six weeks after the ■filing of the plea, and, second, that no exceptions were filed to the answer, but appellant filed a general replication thereto.
From the long delay in filing the answer, as well as from the statements contained in the plea and the evidence to which we shall refer, we are impressed with the idea that it must have been an after-thought on the part of appellees to claim as part of their defense that appellant had failed to put the engine in the best running order and had also failed to complete the work within a reasonable time. No such claims are made in the plea, bufan indebtedness of $285.00 is admitted therein and that appellees had tendered the same on two different occasions to appellant and demanded the possession of the engine.
Turning to the evidence, we find that Elmer E. Cline, one of the witnesses introduced on behalf of appellant testified positively that the work on the engine and boiler was done in a first class manner and the engine put in running condition agreed upon in the letter written by witness to appellees on the 30th day of May, 1902, the same having been repaired thoroughly and tested. The witness, at the time this work was done, was the general manager of appellant, though he had no connection therewith at the time he gave in his testimony. He further testified that all of the work was completed on the 15th day of September, 1902, when witness called" up appellees
P. R. Lester, one of the appellees, testified that he saw the engine fired up, under steam, about the 15th day of September, 1902, when he went to appellant’s place of business to get it, but that it was not run and appellant declined to let him take it out because he would not sign the notes for the amount demanded. He further testified that he became indignant when informed that he must sign a note for $580.00, and immediately made a tender to appellant of $285.00, the amount he claimed was due appellant, and demanded possession of the engine, which tender and demand were refused, were renewed in February, 1903, and again met with a refusal. He failed to testify, however, that on either occasion or at any time after the completion of the work he notified appellant of its failure to do the work in accordance with the contract or that he was dissatisfied with the manner in which it had been done, though he did testify that he found the engine “not in the best condition,” specifying that the cylinders were cracked and leaking before he left Georgia, having iron bands swung around their heads, and that they remained the same, also that there was a crack in the top of the boiler and a patch, on it, the crack having extended beyond the patch, to which he had called appellant’s attention before the work was done, that these things had not been remedied and that the boiler still
The only other witness introduced who testified as to defects in the work done by appellant was J. F. Stewart, who testified that he had seen the engine but once, which was the time he came in with Mr. P. R. Lester to get it, that he examined it and thought it- was in bad condition, two cylinders on the engine being cracked and two steam brakes gone, but that he did not know whether the cracks leaked steam or not.
Taking all this testimony in connection with the pleadings, we are of the opinion that appellant sustained the burden cast upon it of proving the allegations in its bill, that the probative force of the sworn answer was overcome and that appellant was entitled to the relief prayed. See Spencer’s Appeal, 80 Pa. St. 317; Jacks v. Nichols, 5 N. Y. 178. Hence it follows that the first decree rendered by the chancellor was erroneous, that no error was committed in granting the petition for a rehearing, and that the last decree rendered by the chancellor was erroneous in not finding that appellant was entitled to a lien for the sum of $580.00, the amount claimed in the bill.
As to the affirmative relief sought by appellees in their answer as to damages that they had suffered by reason of the dilntoriness of. appellant in completing the work, it is too well settled by decisions .of this court that affirmative relief can not be granted upon the prayer in an answer, no cross-bill being filed, to require any discussion. Wooten
We have considered all the evidence in the record.
Many objections were made by both appellant and appellees to different portions of the evidence, but we can not consider the game for the reason that the record fails to show that any of the objections were presented to the chancellor and expressly ruled upon by him in the court below at or before the final hearing of the cause. Skinner v. Campbell, 44 Fla. 723, 33 South. Rep. 526; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897; Pinney v. Pinney, supra.
It follows from what has been said that the decree must be reversed, with directions to enter a decree in accordance with this opinion, and it is, so prdered; the appellees to pay the costs of this appeal.