82 Fla. 325 | Fla. | 1921
This action is for damages resulting from an alleged breach of contract by the terms of which the plaintiff, defendant in error here, agreed to purchase and the defendant, plaintiff in error here, agreed to sell and deliver to plaintiff for a fixed price per pound certain hogs, or for return of an amount alleged to have been advanced upon the contract in payment therefor, the hogs never having been delivered nor the amount advanced returned. Demurrer was filed to the declaration which, upon a hearing, was overruled. Thereafter pleas were filed to the declaration, two of which, the second and fourth pleas to the first count, were upon motion stricken. Upon a trial of the case verdict and judgment were for plaintiff to which writ of error was taken from this court.
The declaration contains four counts, the first of which, omitting formal parts, is as follows:
‘And now comes the plaintiff W. W. Wade by Chas. E. Davis, his attorney, and .sues M. A .Tripp for $1,000.00 for that on the first day of May, A. D. 1917, in the County of Jefferson, State of Florida, plaintiff at the request of the defendant, bargained with the defendant to buy of him, and the defendant then and there sold to the plaintiff a car load of fat hogs at eleven cents per pound, to be delivered
The second, third and fourth are common counts in assumpsit for money lent by the plaintiff to the defendant, for money received by defendant for the use of plaintiff, and for money found to be due from defendant to the plaintiff.
To this declaration defendant filed five pleas, the first of which, a plea of never was indebted as alleged, being interposed to all four of the counts.
The remaining four pleas were to the first count only. The first of these is a plea that defendant never promised
This court has frequently said that striking a pleading is a severe remedy and should be resorted to only in cases palpably requiring it for the proper administration of justice. Burr v. Hull, 66 Fla. 20, 63 South. Rep. 300; Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 South. Rep. 801; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 South. Rep. 922; Ray v. Williams Phosphate Co. 55 Fla. 723, 46 South. Rep. 158. But even though there may be technical error in an order striking a pleading, it will not he held to be sufficient to require a reversal of the judgment if it affirmatively appears that the party whose pleading was stricken was not harmed thereby and was not prevented from submitting his case to the jury under such a state of pleadings as to give him all the benefits he would have had if such pleading had not been stricken, upon the ground that the error was not harmful. Robinson v. State, 70 Fla. 628, 70 South. Rep. 595; Chancey v. State, 68 Fla. 93, 66 South. Rep. 430; Welles v. Bryant, 68 Fla. 113, 66 South. Rep. 562; J. P. Williams Co. v. Pensacola, St. A., Etc. Co., 57 Fla. 237, 48 South. Rep. 630; Southern Homes Ins. Co. v. Putnal, supra; McKay v. Lane, 5 Fla. 268. If, therefore, defendant was entitled to make the same defense to the action under other pleas on file that he would have been entitled to make under the pleas that were stricken,
By the second plea to the first count defendant sets up a contract different in its terms from the contract declared upon by plaintiff. It is averred by this plea that it was agreed between plaintiff and defendant that the hogs referred to were to be held by defendant as plaintiff’s agent after receipt of the amount of the part payment made by plaintiff when the contract was entered into and that while said hogs so remained in defendant’s possession and with7 out any fault on his part they sickened and died, whereas it appears by the contract declared on by plaintiff that delivery of the hogs was to be made by defendant thirty days after the date upon which the contract was made, at
If it is a part of the contract of sale that the vendor shall deliver the property sold at some fixed time and place and receive payment on delivery, title will not pass until such delivery. 24 R. C. L. 35; Johnston v. Eichelberger, 13 Fla. 230; Stafford v. Anders, 8 Fla. 34; Hart-Parr Co. v. Finley, 31 N. D. 130, 153 N. W. Rep. 137, Ann. Cas. 1917E, 851; Yockey v. Norn, 101 Mich. 193, 60 N. W. Rep. 685, 26 L. R. A. 145; Lewis v. Ross, 37 Me. 230, 59 Am. Dec. 49; Golder v Ogden, 15 Penn. St. 528, 53 Am. Dec. 618; Rugg v Minett, 11 East 210, 10 Rev. Rep. 475, 23 Eng. Rui. Cas. 295.
The contract averred in the plea is materially different • in its legal effect from the contract alleged in the declaration, so that, if upon a trial of the case it had been shown by the evidence that the contract set up in the plea was the contract actually made, there could have been no recovery by plaintiff because of the rule confining and limiting plaintiff to the cause of action alleged in the declaration and forbidding recovery upon any other cause of action however convincing the proof thereof may have been. Mitchell v. Mason, 65 Fla. 208, 61 South. Rep. 579; Goulding Fertilizer Co. v. Johnson, 65 Fla. 195, 61 South. Rep. 441; L. & N. R. R. Co. v. Guyton, 47 Fla. 188, 36 South. Rep. 84; Hinote v. Brigman, 44 Fla. 589, 33 South. Rep. 303; Bucki v. Seitz, 39 Fla. 55, 21 South. Rep. 576; Wilkinson v. P. & A. R. R. Co., 35 Fla. 82, 17 South. Rep. 71.
No statute or rule of court in this State forbids the application of this principle in this class of cases. The unavoidable conclusion is that there was no error in striking the plea. On the contrary it was the proper and orderly procedure for clarifying the issues presented. There is no bill of exceptions in the case, and this court therefore is not advised of what proof defendant was allowed to offer. Presumably he offered such proof as was material and relevant to the issues made by the pleadings. The verdict was for $500 with- interest from June 1, 1917, indicating that the proof sustained plaintiff’s theory that the title to the property had not passed at the time of the loss.
The fourth plea, which was stricken, attempted to set up a similar defense vaxdant somewhat in its terms. The principles announced are applicable to the ruling striking
The assignments based upon the order overruling defendant’s motion for new trial do not require discussion. It is. sufficient to say that reversible error is not made to appear by such assignments.
From what has been said it follows that the judgment must be affirmed.
Affirmed.