Bloodworth v. A.H. & F.H. Lippincott

• Decision Date: 01 August 1919
• Citation: 78 Fla. 261,82 So. 827
• Parties: BLOODWORTH v. A. H. & F. H. LIPPINCOTT.
• Court: Florida Supreme Court

82 So. 827

78 Fla. 261

BLOODWORTH v. A. H. & F. H. LIPPINCOTT.

Florida Supreme Court

August 1, 1919

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

Action by A. H. & F. H. Lippincott, a corporation, against P. F Bloodworth, doing business as the Bloodworth Drug Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

When a declaration in an action for breach of a written contract for the purchase of goods and chattels contains no allegation or allegations showing that such goods and chattels, alleged to have been shipped by plaintiff to defendant, were in transit when destroyed by fire, a demurrer to the declaration upon the ground that the contract, copy of which is attached thereto, provided that said goods and chattels were to be at vendor's risk of damage or destruction while in transit to vendee's freight depot, is properly overruled.

It is not the province of a demurrer to set out facts; it involves only such facts as are alleged in the pleading demurred to and raises only questions of law as to the sufficiency of the pleading, which arise on the face thereof.

When the buyer of personal property, under the terms of a written contract of purchase, must necessarily perform certain obligations before the seller can be required to carry out a particular obligation under the contract, it is not necessary for the seller, in an action against the buyer for failure to carry out such obligations, to allege performance of such particular obligation on his part.

Where the ruling of the lower court in striking more than one plea is attacked by one assignment of error, this court will go no further in considering such assignment of error, if the lower court was correct in sustaining the motion to strike any one of the pleas.

COUNSEL W. T. Hendry, of Perry, for plaintiff in error.

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

OPINION

PERKINS Circuit Judge.

Plaintiff in error, who will be hereinafter referred to as defendant, seeks relief here by writ of error to the circuit court of Taylor county from a judgment therein rendered against him for alleged breaches of a written contract for the purchase of certain goods and chattels from defendant in error, who will be hereinafter referred to as plaintiff. The declaration contains but one count, which is based upon the written contract, a copy of which is attached to the declaration, and attempted to be made, by apt words, a part thereof. The parties treated the copy of the contract, in the court below and in their briefs in this court, as a part of the declaration, and, following what has become its practice, this court will do likewise. First Nat. Bank of Florida v. Savannah, F. & W. Ry. Co., 36 Fla. 183, 18 So. 345; State v. Seaboard Air Line Ry., 56 Fla. 670, 47 So. 986; Langley v. Owens, 52 Fla. 302, 42 So. 457, 11 Ann. Cas. 247; Savage v. Ross, 59 Fla. 407, 52 So. 16. But this court will not go so far as to treat matters of evidence, such as copies of letters and telegrams attached to the declaration and attempted to be made a part thereof, as a part of such declaration, even though the parties may have so considered them.

The declaration alleges that the defendant in and by said written contract ordered of the plaintiff and agreed to purchase from plaintiff certain soda water apparatus described in said contract, and that defendant agreed to pay for the said property the sum of $1,200 at the times and in the manner in said contract stated; that defendant agreed, upon receipt or tender of the goods, or tender or deposit of bill of lading for the same with Perry Banking Company, of Perry, Fla., to execute and deliver to plaintiff notes in the plaintiff's standard form, maturing as set out in said contract; that the defendant further agreed in and by said contract to insure, at his expense, from date of their arrival, for full value, said goods so ordered of plaintiff, and to execute certain promissory notes to indemnify plaintiff against loss or damage by fire until insurance could be procured.

However imperfect the declaration may be, we cannot say that it wholly fails to state a cause of action. It alleges complete performance of the contract by the plaintiff and nonperformance in every particular by the defendant, and that the goods and chattels reached Perry, Fla., their destination, sometime prior to the 19th of January, 1917, and were destroyed by fire in Perry, Fla., on February 12, 1917.

The defendant filed a demurrer to the declaration, containing six grounds; the first and fifth of which, however, being the only ones argued in this court. They will, therefore, be the only ones considered; the others being treated as having been abandoned. Cooney-Eckstein Co. v. King, 69 Fla. 246, 67 So. 918; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603; Atlantic Coast Line R. Co. v. Holliday, 73 Fla. 269, 74 So. 479; Groover v. Hammond, 73 Fla. 1155, 75 So. 857. We may say, however, that none of the other grounds of the demurrer pointed out material defects in the declaration. The demurrer was overruled, and this ruling constitutes the first assignment of error.

The first ground of the demurrer quotes the following sentence from the contract: 'The goods to be f. o. b. Philadelphia, but shall be at vendor's risk of damage or destruction while in transit to vendee's freight depot by the common carrier selected by the vendor as named in the contract'--and says that 'the declaration charges that said property was destroyed while in said freight depot and in a manner as to come within the undertakings and agreements of the plaintiff that said goods should be at vendor's risk while in transit to defendant's freight depot, and by reason thereof the plaintiff states no cause of action against this defendant.' The declaration does not allege that the goods were destroyed while 'in transit,' as that term was defined by the parties to the contract; nor does the declaration allege that they were destroyed while in defendant's freight depot. The effect of this ground of demurrer, therefore, was to set out facts not alleged in the declaration. This is not the province of a demurrer and this ground was therefore properly overruled. State ex rel. Garrison v. Commissioners of Putnam County, 23 Fla. 632, 3 So. 164; Lindsley v. McIver, 51 Fla. 463, 40 So. 619; O'Brien v. State, 55 Fla. 146, 47 So. 11; State ex rel. Railroad Com'rs v. Atlantic Coast Line R. Co., 67 Fla. 441, 63 So. 729; Seeba v. Wolf Bros. Shoe Co., 73 Fla. 227, 74 So. 204; City of West Palm Beach v. Ryder, 73 Fla. 558, 74 So. 603.

The fifth ground of demurrer is as...