Braxton v. Liddon

• Decision Date: 30 May 1905
• Citation: 49 Fla. 280,38 So. 717
• Court: Florida Supreme Court
• Parties: BRAXTON v. LIDDON et al.

38 So. 717

49 Fla. 280

BRAXTON v. LIDDON et al.

Florida Supreme Court, Division B.

May 30, 1905

Appeal from Circuit Court, Jackson County; Charles B. Parkhill Judge.

Bill by Charles C. Liddon and Thomas B. Liddon, partners under the name of C. C. Liddon & Co., against J. W. Braxton. Decree for complainants, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A bill was filed by appellees to foreclose an instrument under seal executed by appellant, mortgaging crops grown in 1903 to secure the payment of $641.65 for fertilizers furnished by complainants. Said instrument contains the following language: 'If is expressly covenanted and agreed that the vendors do not warrant the aforesaid fertilizers as to quality or its effect upon crops or otherwise, but that the same is bought on my judgment with all faults at my risk. I admit that I have personally examined each and every package of said fertilizer, and that it has been duly analyzed and inspected and is labeled and tagged as required by law, and that the manufacturer of said fertilizer has filed with the Commissioner of Agriculture of this State a paper giving the name of the principal agent in this State and the name and guaranteed analysis of said fertilizer upon oath, and has in every other respect complied with the law regulating the sale of commercial fertilizers in this State.' Held, that the quoted language does not estop the defendant below from setting up in his answer, in substance, that the consideration for which said instrument was given had failed that the fertilizer was worthless and spurious, and fell short of, and did not compare with, the guarantied analysis as represented on the tags which were placed on the sacks of such fertilizer; and that the fertilizer was represented to him when he bought it as a high-grade and good guano--because to so hold would enable manufacturers and dealers to nullify the provisions of chapter 4983, p. 133, of the Laws of 1901 providing for an inspection and anslysis of fertilizers, and regulating their sale, the fourth section of which act makes it a misdemeanor for any manufacturer or dealer to misrepresent the ingredients contained in such fertilizers.

2. Where the answer in chancery in a foreclosure suit sets up a failure of the consideration for which the obligation sued on was given, the burden of proving the consideration is upon the complainant in the bill; and where such a chancery cause is set down for hearing, and is heard upon the bill, answer and replication, no evidence having been taken by either party, and the time has expired for taking testimony, and the answer sets up a failure of the consideration for which the instrument sued on was given, it is erroneous to decree a foreclosure in favor of complainants.

3. A supplemental answer filed after the replication was filed, without a motion, or cause shown after notice, and without leave or order of the judge, is filed in violation of rule 61 of the rules of the circuit court in equity, and on motion is properly stricken from the files by the judge.

COUNSEL

Jno. M. Calhoun, for appellant.

Benj. S. Liddon, for appellees.

On the 8th day of December, 1903, C. C. Liddon &amp Co. filed a bill to foreclose a mortgage against J. W. Braxton in the circuit court of Jackson County, which is based on an instrument in writing made a part of the bill, which instrument is in the following words and figures:

'Marianna, Fla., Apr. 17, 1903. $641.65.

'On or before October 1st, 1903, I promise to pay C. C. Liddon & Company, Agents for Goulding Fertilizer Company, Six Hundred, Forty-one and 65/100 Dollars for value received.

'This note is to bear interest from maturity at the rate of ten per cent. per annum, and if collected by an attorney after maturity twenty per cent. of the amount due thereon, shall be added thereto for the fees of such attorney, judgment for same to be included in judgment on note. This note is given for 211 sacks of fertilizer known as Bone Comp. and 80 sacks of fertilizer known as C. S. Mixture and 20 sacks of fertilizer known as Phosphate advanced to aid me in my business of farming in Jackson county, Florida, the present year; and in order to secure the payment of same, according to its terms, I do hereby create both mortgage and a statutory lien upon all the crops of every kind grown or gathered by me in Jackson county, Florida, the present year.

'It is expressly covenanted and agreed that the vendors do not warrant the aforesaid fertilizers as to quality or its effect upon crops or otherwise, but that the same is bought on my judgment with all faults at my risk. I admit that I have personally examined each and every package of said fertilizer, and that it has been duly analyzed and inspected and is labeled and tagged as required by law, and that the manufacturer of said fertilizer has filed with the Commissioner of Agriculture of this State a paper giving the name of the principal agent in this State and the name and guaranteed analysis of said fertilizer upon oath, and has in every other respect complied with the law regulating the sale of commercial fertilizers in this State.

'I further declare that I have never failed or refused to pay for any fertilizers bought by me; that the aforesaid fertilizers are bought for personal use by me upon my own crops, and the sale of these fertilizers to me upon credit is made upon the faith of these declarations.

'In testimony whereof I have hereunto set my hand and seal this the 17th day of April, A. D. 1903. J. W. Braxton. [Seal.]

'The above instrument executed in our presence. Hugh G. Smith.

'Jackson County, Florida. Personally appeared before me Hugh G. Smith, who being duly sworn, says, that he saw J. W. Braxton execute the following instrument for the uses and purposes therein expressed, and that he, Hugh G. Smith, signed the same as a witness.

'Witness my hand and official seal this April 24th, A. D. 1903. Moses Guyton, Clerk of Circuit Court.'

On the back of said Exhibit A was the following indorsement, which is as follows:

'Filed for record April 24, 1903. Jackson County, Fla. Filed for record April 24th, 1903, and duly recorded in Book VV, page 266, and record verified. Moses Guyton, Clerk of Cir. Ct., by Moses Guyton, Jr., D. C.'

The appellant, Braxton, answered the bill, and, among others, set up the following defense:

'(1) It is true that he made and executed the note or obligation sued on in the bill of complaint; that said note or obligation was given by the defendant to the complainants solely and exclusively for the purchase of 211 sacks of guano or commercial fertilizer known as 'bone compound,' and 80 sacks of guano or commercial fertilizer known as 'C. S. mixture,' and 20 sacks of guano or commercial fertilizer known as 'phosphate'; that such fertilizer was advanced by the complainants to the defendant for the purpose of aiding the defendant in making and growing his crop in Jackson county, Florida, for the year 1903; that the defendant used said fertilizer in the usual manner in which guano or commercial fertilizers are ordinarily used, and such fertilizer was wholly worthless, and was of no benefit whatever to defendant's said crop, but, on the contrary, was an injury to his said crop, in that it damaged the defendant's crop to such extent that very little crop was made by the defendant, and the crop which was made by the defendant where such fertilizer was used was less than would have been made on the same land if no fertilizer at all had been used. Defendant alleges that said fertilizer so advanced to him by complainants, for which this suit is brought, not only damaged his crop, but has damaged the productiveness of his land, and it has caused him to suffer great damage, in the loss of his crop for the year 1903, and all of such damage to defendant's crop was the direct result of using said fertilizer for which the note sued on was given. Wherefore the defendant alleges that the consideration for such said note was given has wholly failed, and the defendant has received no benefits for the

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