Bethea v. Houck

• Decision Date: 30 October 1920
• Parties: BETHEA v. HOUCK.
• Court: Florida Supreme Court

86 So. 502

80 Fla. 630

BETHEA v. HOUCK.

Florida Supreme Court

October 30, 1920

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

Action by W. H. Bethea against D. B. Houck. A demurrer to the declaration was sustained, and final judgment for defendant rendered on demurrer, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Declaration stating essentials of cause of action, sustained by exhibits held not demurrable. Where the allegations of a declaration state the essentials of a cause of action, and the exhibits to the declaration in effect sustain the allegations, a demurrer to the declaration should be overruled.

COUNSEL

Wm. T. Hendry, of Perry, for plaintiff in error.

W. B Davis, of Perry, for defendant in error.

OPINION

WHITFIELD J.

The declaration herein is as follows:

'The plaintiff, W. H. Bethea, by his undersigned attorney, sues the defendant, D. B. Houck, in an action of covenant, damages $500, for that heretofore, to wit, on the 19th day of June, 1918, plaintiff purchased from defendant all of the cattle owned by defendant, together with defendant's farm and other properties, the exact number of the cattle at the time of the purchase being uncertain, but which defendant guaranteed to be not less than 35 head, and for all of said properties plaintiff agreed to pay to the defendant the sum of $5,450; that the defendant, joined by his wife, then and there made, executed, and delivered to plaintiff a certain bond for title and contract of sale, by which defendant covenanted to convey and transfer and deliver all of the said properties as therein described, upon the payment of said sum of $5,450, evidenced by plaintiff's promissory note payable December 1, 1918, a copy of said bond for title being hereto attached and made a part hereof, as much so as if set out in full herein, marked 'Exhibit A.'

'Plaintiff alleges that thereafter he paid said note, and the defendant then and there became obligated to transfer and deliver all of said cattle, which said cattle were then and there 40 in number.

'Plaintiff alleges that defendant has failed to transfer and deliver 12 of said cattle, which said 12 head of cattle were then and there of the value of $30 per head, and of the total value of $360; that plaintiff paid the said promissory note, so given for the purchase price of said cattle on the 2d day of December, 1918, and the defendant became obligated to deliver all of said 40 head of cattle to the plaintiff; that by reason of defendant's breach of his said bond for title and contract of sale, by failure to deliver said 12 head of cattle, plaintiff has been deprived of the use, benefit and value thereof. Wherefore plaintiff sues, and claims $500 damages.'

Exhibit A is as follows:

State of Florida, Taylor County.

'Know all men by these presents: That D. B. Houck and Minnie Houck, of the county of Taylor, state of Florida, held and firmly bound unto W. H. Bethea, or his heirs, of the county of Taylor, state of Florida, in the sum of ($5,450.00) five thousand four hundred fifty dollars, for the payment whereof, well and truly to be made, to bind D. B. Houck, heirs, executors, and administrators of D. B. Houck, firmly by these presents.

'Signed and sealed this 19th day of June, A. D. 1918.

'The condition of the above obligation is such that whereas, the said D. B. Houck and Minnie Houck has this day bargained and sold to the said W. H. Bethea the following described property, lying and being in the county of Taylor and state of Florida: S. 1/2 of S.E. 1/4 of Sec. 16, and N.W. 1/4 of N.E. 1/4, Sec. 21, and S. 1/2 and S. 1/2 of N.E. 1/4, Sec 15, all in township 5 and range 8 east, containing 480. A sugar mill and kettle, and all the goats, of 23 head, now belonging to the place and on the range, and corn to the amount of 200 bbls., and 35 head of cattle branded with D on the range, maybe more cattle, and 7 or 8 head of sheep. Cows marked swallow fork and under bit and crop under cross nick...