63 Fla. 267 | Fla. | 1912
— In 1908, the defendant in error as plaintiff brought an action of assumpsit in the Circuit Court of Hernando County, against the plaintiffs in error as defendants, and M. P. Mickler and H. C. Mickler filing the following amended declaration:
“The Crawfordville State Bank, a corporation organized and existing under the laws of the State of Indiana, plaintiff by its undersigned attorney, sues J. W. Springstead, O. W. Rice, A. F. Burns, J. C. Burwell, S. E. Mickler, W. A. Fulton, W. P. Tucker, W. Hop. Smith, M. P. Mickler, H. C. Mickler and W. R. Ayers, defendants, in an action of assumpsit, and thereupon plaintiff alleges and says:
That the defendant did on the 22nd day of January, A. D. 1906, according to the custom and usage of mer
After several pleas had been filed and demurrers there to sustained, the defendants filed the following plea:
“And for amendment to their third plea, the defendants say:
That the note sued on was given by them to J. Crouch & Son in consideration of a certain stock horse or stallion, to the said defendants sold and delivered by J. Crouch & Son, the payee of the said note on or about the twenty-second day of. January, 1906, with the contemporaneous agreement and guarantee of the said payee with the said defendants that the said note should be surrendered by the said payees to the said defendants and the said horse taken back by the said payees if less than sixty per cent of the breeding service of the said stallion during the breeding season next preceding the maturity of the said note prove effectual impregnation, and the said payees as part of the contract of sale and consideration of said note, then represented and guaranteed that the said stallion was vigorous, fit and reliable and capable for breeding purposes in the said ratio of sixty per cent of general service in breeding; and the said stallion, with full knowledge- of the said payee that the said stallion was purchased by the defendants for such breeding purposes, was accepted and purchased by the said defendants, from the said payees, upon said representations and guarantee, and the said defendants trusting in the said representations and guarantee, by the said payees of the said breeding capacity, fitness and vigor for service of the said stallion; and the said stallion was immediately put into general service for such
A previous plea of substantially the same import had been'filed and a demurrer thereto sustained. A demurrer to the last mentioned plea was also filed on the grounds that it was irrelevant and immaterial, indefinite, frivolous, uncertain and constituted no defense to the suit. This demurrer was sustained, and this ruling is assigned as error.
A trial was had resulting in a verdict for the defendants. A new trial was granted and on the second trial there was a verdict and judgment for the plaintiff. This judgment is here for review on writ of error.
To sustain the ruling of the court below on the demurrer to the plea referred to,-the defendant in error in its brief contends that the plea does not show knowledge on its part of the failure of consideration and breach of warranty at the time it purchased the note. It seems to us that the plea very clearly states that at the time the plaintiff took the note by endorsement, it had notice and knowledge of the agreement, guarantee, sale and
It seems to us with the light before us the demurrer should not have been sustained. But apart from this fact, it appears that during the progress of the trial, objection was made to the introduction of the note in evidence because of an alleged variance between it and the declaration. Thereupon the plaintiff took a non-suit as to two of the parties jointly sued, viz: S. E. Mickler and H. C. Mickler and dismissed the suit as to them. This was objected to by the defendants and the contention there and here is that the effect of this action was to discontinue the whole case, as the plaintiff had elected to sue all the defendants jointly.
When the plaintiff discontinued the action as to the two Micklers, we think it clear that under the practice prevailing in this State, the Circuit Judge should have dismissed the whole case. The note was a joint and several one. The plaintiff had the right to sue them all jointly or any one or all of them severally; but an action against some of them only is subject to a plea in abatement. In the midst of the trial it elected to dismiss as to the Micklers, who had pleaded, not personal pleas, but jointly with the others and this made the action a joint one against a part of the makers. If the plaintiff had dismised the action against all the. makers except one, it would then have been changed into a several suit against that one, and that might have been permissible. But we can find no statutory authority in this State for the course that was pursued, and it is not supported by the common law practice. 6 Ency. Pl. & Pr. 857; 15 Id. 553; Hale v. Crowell’s Adm’rx., 2 Fla. 534; Somers v. Florida Pebble Phosphate Co., 50 Fla.
The judgment below is reversed with direction that the case be dismissed.