59 Fla. 407 | Fla. | 1910
law against the defendant in error in the Circuit Court of Duval County. The declaration contains two counts: The first, in substance, declaring upon a lease for rent alleged to be due under the terms and conditions of an instrument under seal called a lease, and the second as upon a breach of covenant contained in said instrument. This lease is made a part of each count of the declaration. The defendant pleaded three pleas: First, that the alleged indenture is not his deed; second, that there was in and upon the land mentioned in the declaration no mineral for which the defendant covenanted to pay fifty cents per gross ton as in said declaration mentioned; and, third, that there was in and upon the land metioned in the declaration no mineral for which the defendant covenanted to pay fifty cents per gross ton suitable or practicable to be mined. Issue was joined on the first plea, and a demurrer was interposed to the second and third pleas, which was sustained. On the trial the plaintiff offered in evidence the lease set out in the declaration, to the introduction of which the defendant, after admitting in open court that the signature and seals to said paper were all genuine, objected to its being read in evidence. The objections cover five pages of the type-written copy of the record. The contention sifted down is, as we understand it, that the true meaning of the lease is that the defendant was not required to pay royalties or ground rent on rock not shipped from the
If there is a doubt as to the legal effect of an instrument, it seems to have been permitted 1 Saunders on PI. & Ev. (5th Am Ed) 194, 1 Chitty, Supra.
It has occurred in a number of cases which have come to this court and as the parties have consented to this method of pleading in the courts below, this court has treated the records as it found them! First Nat. Bank of Florida v. Savannah, F. & W. Ry. Co., 36 Fla. 183, text 193, 18 South. Rep. 345. See also the exhaustive discussion of this question in the case of the State v. Seaboard Air Line Ry., 56 Fla. 670, text 679, 47 South. Rep. 986, and cases cited.
In the instant case, we are required to construe the
The defendant below seems to have acted on the theory that our statute (section 1429 General Statutes of 1906) doing away with the necessity of profert, and the right of the opposite party to crave oyer, made nugatory that part of the declaration in the instant case, by which the lease was made a part of the'same. It is true that by virtue of the statute, fhe defendant could not crave oyer and thereby have made the lease a part of the declaration. But the plaintiff of his own motion and without oyer made the lease a part of his declaration. The statute does not render this act of the plaintiff nugatory. It may, under our system of pleading be embarrassing to the defendant for him to do so. But the defendant did not object and .request a compulsory amendment under section 1433 General Statutes of 1906. The record is in this shape with the defendant’s consent.
Under such circumstances this court has heretofore dealt with the record as it found it, and we have held that where a demurrer is filed to such a declaration, it is addressed to the entire declaration, including the cause of action which is made a part of it, and if when so considered, the statement of the cause of action is repugnant or inconsistent with the allegations of the declaration, it
In such a case the matter is one of law and not one of fact, and a demurrer is the proper method by which a question of-law is raised. If the lease had not been made a part of the declaration, but it had been simply sued upon, according to its legal effect as construed by the plaintiff, then under plea of non est factum, the defendant might have properly made the objections he insisted on at the trial. He might well have contended I executed a lease it is true, but the lease I executed does not bear the construction which you place on the one upon which you sue, and therefore is not the lease which I executed. In other words, I made no such lease as you sue on. Stephens on PI. (Tyler) 171, 172 and 253. It is said by Williams, J., in Smith v. Scott, 95 E. C. L. *771 (decided in 1859 while the above cited rule fixing the scope of the plea of non est factum was in force) : “The proper mode of taking advantage of a variance between the alleged and the real effect of a deed is by a plea of non est factum■ ” In this case the deed was not made a part of the declaration by oyer or otherwise.
It seems to us that the Circuit Judge erred in sustaining the objections of the. defendant to the introduction of the lease in evidence. We would be glad, for the convenience of the parties, if we could do so without violating the well established rules of procedure, to construe the lease and to determine whether the contention of the defendant is correct. But we do not feel we are
The judgment of the Circuit Court is reversed.