77 Fla. 235 | Fla. | 1919
— The Peoples National Bank of Orlando sued J. B. Magruder upon two promissory notes each for eight hundred dollars. The notes were made' by Magruder and were payable to the order of the bank. Each
Magruder averred in substance in his first plea that he owned the building occupied by the plaintiff as its place of business, and .the plaintiff was his tenant, and that the lease expired August 15, 1913, the date of the last note; that the note dated July 23, 1913, was given as the result of an oral agreement between the plaintiff and the defendant whereby it was agreed that if the defendant would permit the plaintiff to make certain improvements and alterations in the “rooms and building by changing the entire front for-the express purpose of rendering the same suitable for banking business,” the defendant to pay the expense of such alterations, that the plaintiff would retain and occupy the premises thereafter and pay an increased rental therefor of seventy dollars per month until a written agreement could be made between the parties whereby the premises were to be leased to the plaintiff for a period of five years at seventy dollars per month; that the improvements were made pursuant to such agreement; the cost thereof, amounting to $1,127.50, was charged to Magruder, for which he gave the promissory note sued upon in the first count of the declaration, but that the plaintiff failed and refused to occupy the building and pay the rent agreed upon therefor since October 15, 1913,. and refused to enter into the agreement of lease; that the alterations made in the building were of peculiar value to the plaintiff for its banking business and of no value to the
The same plea was interposed to the second count of the declaration which was based upon the note dated August 15, 1913.
In a third plea interposed to the two counts of the declaration the defendant set up the same facts, but admitted that the notes were given for the cost of the alterations i'n the building plus $472.50, which latter sum the defendant owed to the plaintiff for money loaned by the plaintiff to the defendant. This plea also averred that the consideration for the two notes had wholly failed.
In a fourth plea to the declaration the defendant offered to set off against the plaintiff’s claim the sum of $210.00,. the same being the amount of the rental of the rooms from October 15, 1913, to the date of the institution of the suit, which was January 6, 1914.
By a fifth plea to the declaration the defendant pleaded the same facts that were averred in the first plea, and the further fact that an additional sum of one hundred dollars was spent for wiring by him at plaitiff’s request under the agreement to occupy the building and enter into a five year lease, which made the total cost of the improvements $1,227.50, which the defendant offered to set off against the plaintiff’s claim.
A sixth plea averred that the plaintiff was indebted to the defendant in the sum of $130.60 for work done and materials furnished at plaintiff’s request consisting of flooring laid in the banking rooms and moving picture advertisements, which sum the defendant offered to set off against the plaintiff’s claim.
The matters of law to be argued in support of the demurrer to the fifth plea were: that the plea contained no proper matter of set off; that in the plea the defendant relied upon a breach of a contract unenforcible under the statute of frauds'; that a breach of such an agreement could not be pleaded by way of set off, and that the contract set up in the plea was unenforcible under the statute of frauds.
The demurrer was overruled.
The plaintiff joined issue upon all the pleas and interposed seven replications to the first, second, third, fourth and fifth pleas, alleging in substance that neither the agreement set up in the pleas nor any memorandum thereof was made in writing and signed by the plaintiff nor any one by it lawfully authorized, and that the agreement was for a lease of lands for a longer period than one year; that the agreement was not. to be per
The plaintiff also filed a motion to require the defendant to elect whether he would rely upon the first, second and third pleas, or the fifth plea, it being contended that -the latter plea was a mere repetition of the first three.
The plaintiff then joined issue upon the two amended pleas, and interposed nine replications thereto, seven of which were in substance, the same as were interposed to the first, second, third and fifth pleas; and further that the agreement set up in the amended pleas “undertook to create a term of years of more than two years” and the same was not created by deed in writing signed and sealed in the presence of two subscribing witnesses by the defendant,, and that the agreement was not in writing; that the rent thereunder was payable monthly, whereas the plaintiff became a tenant at will and vacated the premises on October 15, 1913, after notice of the termination of the lease. Like replications were interposed to the fifth plea.
There appeal's to have been no joinder of issue upon the replications interposed by the plaintiff to the fifth plea and the two amended pleas, and the case came to trial “on the issues joined,” so the record recites, on May 11, 1917, about ten months after the filing of the plaintiff’s replications.
There was a verdict for the plaintiff in the sum of $241.90, with interest at ten per cent from October 15, 1913. Judgment was entered in favor of plaintiff against the defendant in the sum of $328.25. The verdict was seemingly arrived at by allowing the defandant the sum of $1,227.50, which was made the subject of the . two
When the motion of the plaintiff to require the defendant to elect between his first, second and third pleas on the one hand, and hi's fifth plea on the other, was granted, and the defendant by leave of court filed' his two amended pleas to the declaration, he abandoned the first, second and third pleas, retaining the fourth, fifth and sixth pleas. These pleas’ as stated were pleas of set off in which the claims for three months’ rent, the entire cost of the improvements and the flooring and moving picture advertisements were urged.
When the plaintiff went to trial before any issue was joined on the replications interposed to the two amended pleas it waived such replications because it is the duty of the parties before going into trial to see that the pleadings are made up, and when they go willingly before the jury they will be considered as having waived all demurrers undisposed of and replications on which the issues are not joined. See Judge v. Moore, 9. Fla. 269; Livingston v. L’Engle, 22 Fla. 427; Franklin Phosphate Co. v. International Harvester Co. of America, 62 Fla. 185, 57 South. Rep. 206.
Whether the above rule should be applied to this case or not the result will be the same, because much of what was contained in the replications amounted to nothing more than a demurrer to the pleas in that it consisted of a construction or interpretation of the contract set up in the pleas and the trial court’s view of the agreement was expressed both in his rulings upon the demurrer to
It is contended in the first place by the plaintiff that its president or other officer who in behalf of the bank made the agreement with: the defendant had nd authority from the board of directors to make such a contract. This point, we think, i's not well taken. The point is made upon an assignment of error based on matter appearing in the bill of exceptions, but we will dispose of it here in this connection for convenience. The contract related to the matter of securing a place in which the plaintiff might transact its affairs, a thing absolutely necessary to the carrying on of the banking business. If it were not thus within the scope of the president’s apparent authority, the matter seems to have received
The pleadings do not aver nor does the evidence show that the thing to be done and which was contemplated by the oral agreement of which it was the subject, was not to have been performed within a year. The oral agreement was made, it is true, about July, 1912, and the bank’s lease expired August 15, 1913, more than a year after the oral agreement was made, but the subject of the oral agreement was the early making of a written contract by the plaintiff for the lease of the property to begin at the expiration of the present lease. According to one of the replications of the plaintiff the written contract was to have been signed when the improvements were completed and the plaintiff caused a. draft of the contract or lease to be made. The making of the written contract of lease was the thing to be done by the plaintiff under the oral agreement, and it was contemplated by the parties to be done' immediately and expeditiously. Upon this point the jury seems to have decided in favor of the defendant, and there was sufficient evidence and matter of record to support the finding.
According to the .issues submitted to the jury, that which the defendant did, namely, paid for the cost of the changes in the premises for the plaintiff’s benefit, was
Now the evidence for the defendant in the matter of the cost of . improvements was much broader than the averments of the plea in that it covered the cost of that part of the front of the building which constituted part -of premises occupied by another tenant named Branch, who conducted a stationery store — pine floors in the back room which- seem to have been put down at plaintiff’s request, but not in pursuant of the original oral agreement, and the expense of plastering rooms in the building on the second floor which -seem not to have been included in the agreement, In so far as.these items entered into and became a part of the allowance made by the jury as pro.per to be recouped from the plaintiff’s claim,
It is unnecessary to discuss the other assignments of error.
The judgment is. reversed.