Hillsborough Grocery Co. v. Leman

• Decision Date: 14 November 1911
• Citation: 62 Fla. 208,56 So. 684
• Parties: HILLSBOROUGH GROCERY CO. v. LEMAN et al.
• Court: Florida Supreme Court

56 So. 684

62 Fla. 208

HILLSBOROUGH GROCERY CO. v. LEMAN et al.

Florida Supreme Court, Division A.

November 14, 1911

Error to Circuit Court, Hillsborough County; J. B. Wall, Judge.

Action by William W. Leman and another, doing business under the firm name of the Leman & Wright Grocery Company, against the Hillsborough Grocery Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no loger open for discussion or consideration, but this principle has no applicability to and is not decisive of points presented upon a second writ of error that were not presented upon the former writ of error, and consequently were not before the appellate court for adjudication.

Every pleading is to be most strictly construed against the pleader thereof. It is the first essential of good pleading that it be characterized by certainty, and this quality is especially requisite in replications and rejoinders.

Wherever fraud is relied upon in any pleading, either at law or in equity, the allegations or averments should be specific and the facts constituting such fraud should be stated, else such pleading, upon proper attack, will be held bad.

A rejoinder which admits the correctness of the statement in the replication, but seeks to avoid the same by setting up the fraud of the plaintiffs in their representations to the defendant which induced the compromise and settlement of the debt set up in the replication, being in the nature of a confession and avoidance, should set forth specifically and with certainty the facts and circumstances constituting such fraudulent representations, in default of which a demurrer is properly sustained to such rejoinder.

COUNSEL

D. C. McMullen, for plaintiff in error.

E. R Gunby, for defendants in error.

OPINION

SHACKLEFORD J.

For the second time we are called on by writ of error to review the judgment rendered in this case. See Hillsborough Grocery Co. v. Leman & Wright, 51 Fla. 203, 40 So. 680. As was set forth there, an action of assumpsit upon the common counts was brought by the defendants in error against the plaintiff in error. The defendant in the court below filed three pleas: (1) That it never was indebted as alleged; (2) that it did not promise as alleged; and a third plea which was as follows:

'That the plaintiffs at the commencement of this suit were, and still are, indebted to the defendant upon a promissory note, a copy of which is hereto attached, for the sum of four hundred dollars ($400.00) principal and interest at the rete of 8 per cent. per annum from the 1st day of June A. D. 1904; and

'For money payable by the plaintiffs to the defendant for goods, wares, and merchandise sold and delivered to the plaintiffs by defendant at the request of plaintiffs for the sum of four hundred dollars ($400.00); and

'For money found to be due from the plaintiffs to the defendant on account stated between them in the sum of four hundred dollars ($400.00), which amounts this defendant is willing to set off against the plaintiffs' claim.'

The plaintiffs joined issue upon the first two pleas, and filed the following replication to the third plea:

'That before the institution of this suit, and before the sale of the goods to the defendant, for the payment of which this suit was instituted, the plaintiffs were insolvent, and that the defendant well knew of said insolvency.

'That the plaintiffs through their agent and attorneys offered to the defendant, in order to prevent proceedings in bankruptcy, and in order to avoid the expenses thereof, the sum of thirty (30) cents on the dollar in full payment and settlement of the claim of the Hillsborough Grocery Company, which said sum of thirty (30) cents on the dollar the defendant received and accepted in full payment of said debt, well knowing that the plaintiffs were at that time insolvent, and unable to pay their debts in full, and thereby the said plaintiffs paid to the defendant all claims of every kind and character that the said defendant had or held against the said plaintiffs, including the said promissory note mentioned in defendant's third plea, and that the suit brought by the said plaintiffs against the Hillsborough Grocery Company, the defendant, is for goods, wares, and merchandise sold to the said defendant after it had been paid in full as aforesaid.'

To this replication the defendant filed the following rejoinder:

'That, although defendant admits it accepted the offer of plaintiff to pay the defendant the sum of 30 cents on the dollar in settlement of its claim against plaintiff and received the money thereon, amounting to one hundred twenty dollars ($120.00), this defendant alleges that said settlement was procured by the representations made on behalf of plaintiff that they were settling with their various creditors on the basis of 30 cents on the dollar, and defendant was led to believe that no creditor of plaintiff was receiving a preference, whereas, without the knowledge or consent of the defendant, the Exchange National Bank, one of plaintiff's creditors, was paid the sum of 50 cents on the dollar in settlement of said bank's claims against the plaintiff, which settlement with said bank was contrary to the representations made to the defendant, upon which defendant agreed to accept the said 30 cents on the dollar in settlement of its claim against the plaintiff, which rendered the settlement between the plaintiff and defendant null and void.'

To this rejoinder the plaintiff interposed the following demurrer:

'Now comes the plaintiffs by E. R. Gunby, their attorney, and demur...