36 Fla. 619 | Fla. | 1895
The appellee, plaintiff below, brought suit against the appellant, defendant below, upon a claim assigned to him (appellee) by one I. T. Carter. This claim was-an account of said Carter against E. J. Baker deceased, the intestate of the appellant, and was attached to-the declaration as a bill of particulars, and was as follows :
E. J. Baker to I. T. Carter ■ Dr.
Sept. 15, 1888.
Surveying and locating fifty lots of lands in Echols county, Ga................$2,750.00’
To 5 months’ services rendered E. J. Baker, ending November 23, 1888................ 125.00
Total...................$2,875.00
Received on the within r claim five hundred and seventy-two 78-100 dollars, October 3,
1890......’................. $572.78-
Balance due...........................$2,302.22
The declaration contained the usual common counts. The defendant plead several pleas, all of which were equivalent to a plea of never was indebted upon the-part of the appellant’s intestate. Upon trial verdict and judgment were rendered against defendant for $2,000 and costs, from which defendant appealed. Several assignments of error were made. We consider .all of them that are argued and appear necessary to a disposition of the case, or to guide the court upon a new trial.
Upon the trial the plaintiff offered some evidence which was objected to by defendant upon the ground.
The defendant offered in evidence a receipt dated April 1st, 1891, for a large payment upon the claim sued upon, given by Carter, the assignor of such claim. The court excluded the receipt. There was no error in such ruling. The pleas upon which issue was taken were filed February 2d, 1891, nearly two months before the date of the receipt which was excluded. There was no issue in the case to which the evidence was applicable. The matter of defense sought to be established by the evidence offered was one arising after the commencement of the action. The pleas in the case did not state whether the defenses arose before or after action begun, and according to our statute must be deemed pleas of matters arising be
It is alleged that the Circuit Court erred in refusing to grant a new trial in the case. Among other grounds of the motion for new trial it is asserted that the verdict -was contrary to law and evidence, and excessive in amount. Examination of the record shows that the account sued upon, as shown by the bill of particulars attached to the declaration, was for “surveying and locating fifty lots of land in Echols county, Georgia, $2,750, and five months’ services at $25, $125.” Upon trial the plaintiff offered an account for “surveying and locating fifty-eight lots of land in Echols- and Clinch counties, 'State of Georgia.” A. M. Knowles, a witness for plaintiff, testified that the lands which were surveyed, and for the surveying of which the. suit was brought, were located in Echols and Clinch counties, Georgia, principally in Clinch. The-defendant moved to strike out all evidence relating to work done upon other lands than those in Echols county, upon the ground that the same was not included in plaintiff’s bill of particulars. The court ruled that the work could be proven any where else than in Echols county, but “that it must come in under the item of $125.” Therefore under the ruling of the court no recovery could be had except for work, done in surveying land in Echols county, Georgia.
The plaintiff offered three witnesses to prove a contract of E. J. Baker, deceased, with Carter, 'the assignor of plaintiff, in reference to surveying lands. Two of these witnesses, James Burnett and A. M. Knowles, wholly fail to prove any such contract or any liability of the estate for the claim sued upon. The evidence of these witnessés only tended to prove a contract for the surveying of land, in which Carter was to
As a new trial is to be had in the case, one other contention upon the part of the appellant needs consideration. The appellant claims that the appellee (plaintiff below) being only a holder of the claim sued upon, as a pledge or collatteral security, is not a real party in interest so that he may bring a suit thereon in his own name. By the terms of the assignment Car
For the error pointed out herein the judgment of the ■Circuit Court is reversed and a new trial awarded.