Bacon v. Green
| Decision Date | 26 July 1895 |
| Citation | 36 Fla. 325,18 So. 870 |
| Parties | BACON v. GREEN. |
| Court | Florida Supreme Court |
Error to circuit court, Marion county; J. J. Finley, Judge.
Assumpsit by Louen N. Green against Mark R. Bacon and others. There was a judgment for plaintiff and defendant Bacon brings error. Affirmed.
Syllabus by the Court
1. If any pleading to which reply has been made is subsequently amended, the replicant may stand on his former pleading, if applicable to the amendment, or he may avail himself of the right to plead anew to the amended pleading. By pleading de novo to the amendment within the period fixed by statute, or such other time as the court may allow, the party waives or abandons all former pleading to the pleadings amended, except what he subsequently pleads.
2. The plea of nonassumpsit is not applicable, under circuit court rule 64, to the common counts for money had and received, and for an account stated.
3. Although a plea applicable to a common count in a declaration be improperly overruled on demurrer, yet, if the declaration be subsequently amended as to a special count, in no way affecting the common count, and the defendant, in replying to the amendment, file a plea in substance the same as the one overruled, and has the benefit of it on the trial, the overruling of the first plea is immaterial.
4. In an action of assumpsit to recover back money paid under a contract alleged to have been violated by the parties thereto, sued as defendants, and rescinded by the plaintiff another party thereto, the form of action will not be affected in any way by the consideration, whether the contract be under seal or not as to all the parties executing it, as the suit is not on the contract, but in assumpsit to recover money received.
5. The word 'Seal' written in a scroll opposite the name of an obligor on an instrument indicates an intention on his part to make it a specialty; and if several persons sign an instrument, concluding with 'Witness our hands and seals,' and some place seals opposite their names, and others do not, such as do not affix seals will be presumed to have adopted the seals already on the instrument.
6. Equitable pleas at law, in order to be good, must present some matter of defense which would be good ground for relief in equity against the judgment at law should it be recovered.
7. A party cannot, either at law or equity, contradict or vary his written contract by showing that, notwithstanding he signed it, it was with the understanding that he was not to be bound by its terms.
8. Where the execution of a contract or obligation by a party is an admitted fact, on the pleadings upon which a case is tried, the declaration alleging such fact, and no plea denying it, testimony tending to prove that the party was not in fact bound by the terms of such instrument is not admissible. In the absence of fraud, surprise, or mistake, a party executing a valid written contract is bound by its terms, in controversies between him and other parties thereto.
9. Where there is no conflict in the evidence on a point, and relevant portions of it fully sustain the verdict, and are of such a character as to authorize no other finding in reference to such matter, a new trial should not be granted although some irrelevant testimony on the point may have been admitted.
10. In an action of assumpsit against two or more parties to recover money paid under a contract subsequently rescinded, it is essential to show that the money was received under a joint contract, or that the parties jointly received the money and, in case of a joint obligation, a recovery can be had against one obligor for money received by another on joint account.
11. Written communications of one joint obligor as to the noncompliance of the joint undertaking are admissible against another joint obligor, under the sole objection that they were not written by the obligor sought to be bound.
12. Defendant was asked what he knew about plaintiff extending time for the completion of the contract, or that there was an extension of time for its completion, and answered that he knew it by implication, and from his brothers. On motion to exclude the portion of the evidence relating to information received from the brothers of witness, the court ruled that so much of the evidence based upon information received from the brothers of witness, to be ascertained by reference to the record, be stricken out. The only evidence of the witness in the record relating to information received from his brothers as to extending time for completion of the contract is that stated; and, as it contains an implication that witness knew from his brothers that plaintiff had extended the time, there was no error in excluding it.
13. An agreement of counsel that depositions may be read in evidence on the trial of a cause does not obviate the necessity of having such depositions as were read in evidence incorporated into the bill of exceptions; and depositions, though copied into the record, but not included in the bill of exceptions by recital or reference, so as to be identified, cannot be considered in the appellate court.
14. The court erroneously permitted evidence, on behalf of defendant that he was not to be bound by the terms of the contract admitted to be executed by him, and that the plaintiff accepted the contract with such underatanding, and then charged the jury that, in view of the evidence admittled, the burden of proof rested upon defendant to show that plaintiff accepted the contract with the understanding as to the nonliability of the former. Held, that the testimony was improper, but, as it was admitted in favor of defendant, he could not complain of the charge of the court based thereon.
15. Pleas setting up affirmative defenses impose the burden of proof to maintain them on the defendant.
16. A contract providing for the making of a complete set of abstract books for a designated county, the books to be completed within one year from date of beginning work on them, means that, within the time provided, all the records of the county contemplated by the system to be abstracted, should be abstracted, complete, up to the time of the fulfillment of the contract.
17. Where the facts are not disputed, the question of what is a reasonable time in which to rescind a contract is a question for the court to decide; and it is not error for the court to instruct the jury, on the undisputed facts given in evidence, that a specified time is or is not reasonable.
18. When one party to an entire executory contract has failed to perform it on his part, and the other party is not in default, and is in a condition to rescind, he may abandon the contract, and bring an action of assumpsit to recover back what he has paid thereunder, whenever assumpsit will lie, independent of the contract.
19. The court has the right to eliminate erroneous features from a charge requested, and give it as modified, provided it is proper, in its modified form, on the facts of the case.
20. A charge which undertakes to submit to the jury a case on a basis of facts upon which a verdict would be unauthorized, should be refused, without reference to whether it contains a correct proposition of law.
21. It is not essential to the right of a party to a contract to rescind it that its violation by another party was willful.
22. Under the act of 1828 upon the return of the sheriff, on process issued against two or more defendants, that one is served, and the others do not reside in the circuit or county where suit is instituted, it is permissible for plaintiff to proceed to judgment against the defendant served, without any formal dismissal, or noting the fact of nonservice as to the others not served.
Miller & Spencer and John A. Henderson, for plaintiff in error.
R. L. Anderson and Louen N. Green, for defendant in error.
The original declaration in this cause was filed by defendant in error, Green, against Mark R. Bacon, plaintiff in error, and Delos H. Bacon and Adolphus H Bacon. The amended declaration alleges: That plaintiff entered into a contract with defendants, whereby the latter agreed to make a complete set of abstract books of Jefferson county, Ala., the abstract books to be completed within one year from beginning work thereon, in consideration that plaintiff would pay $2,000, $1,000 to be paid on the 10th of November, 1886, $500 in six months from that date, and $500 when the books were completed. That the contract is as follows, viz.: ...
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H. D. Sojourner & Co. v. Joseph
... ... Henry ... v. Allen, 93 Ala. 197, 9 So. 579; Mayor v. Wilkins, ... 37 Fla. 244, 19 So. 632; Bacon v. Green, 36 Fla ... 325, 18 So. 870; Tischler v. Curez, 35 Fla. 323, 17 So. 661 ... It is ... error to instruct hypothetically on a ... ...
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Hoopes v. Crane
...rule that parol evidence is not admissible to vary, alter, or contradict a written instrument. See Bacon v. Green, 36 Fla. 325, text 341, 18 So. 870, text 875, and v. Sims Co., 55 Fla. ----, 46 So. 420. Also, see the language used in Perry v. Woodberry, 26 Fla. 84, text 90, 7 So. 483, text ......
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Scott v. State
... ... the charge.' I fully approve of this holding which has ... been followed in other cases. See Bacon v. Green, 36 ... Fla. 325, 18 So. 870. But I think that the trial judge did ... not by this charge submit the case to the jury upon the ... ...
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... ... its terms. Atkinson v. Blair, 38 Iowa 156; ... Barhydt v. Bonner, 55 Iowa 717; Bacon v. Green ... (Fla.), 18 So. 870; Washabaugh v. Hall (S. D.), ... 56 N.W. 82; Phelps v. Sargent (Minn.), 76 N.W. 25 ... Under ... the ... ...