J.w. Mcwilliams Co. v. Travers

• Decision Date: 11 July 1928
• Citation: 118 So. 54,96 Fla. 203
• Parties: J. W. McWILLIAMS CO. v. TRAVERS et al.
• Court: Florida Supreme Court

118 So. 54

96 Fla. 203

J. W. McWILLIAMS CO. v. TRAVERS et al.

Florida Supreme Court, Division B.

July 11, 1928

Error to Circuit Court, Lee County; George W. Whitehurst, Judge.

Action by Julia A. Travers and others, as executors and trustees of Edward Marion Hendry, against the J. W. McWilliams Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Assignments of error, not argued, are considered abandoned. Assignments of error, not argued, are considered abandoned.

Demurrer to declaration as vague, indefinite, uncertain, and insufficient, is not available, unless it clearly does not contain essential elements of cause of action. Unless it clearly appears, from reading a declaration, that it does not contain, by express allegations, or from fair inferences to be drawn from its allegations, all the essential elements of a cause of action, a demurrer, on the ground that the declaration is vague, indefinite, uncertain, and insufficient, will not be available.

Parties may be estopped from maintaining inconsistent position from that assumed in pleading. Parties may be estopped, by averments in a pleading filed by them, from maintaining in the action an inconsistent position from that assumed in the pleading.

Defendant claiming benefits of previous ruling requiring prosecution on action of note in respective capacities, cannot successfully contend that note was inadmissible because of variance. In an action by payees, to enforce payment by the maker of a promissory note, defendant averred in pleas to the declaration, in substance, that the note sued on was given plaintiffs as a part of the purchase price of certain property bought by defendant from plaintiffs, as executors and trustees, and was intended to be made payable to them not individually, but as executors and trustees. Motion to strike the pleas was denied, but leave was granted plaintiffs to amend. Plaintiffs sued, in an amended declaration, in their representative capacities, making the note, which on its face was payable to them individually, a part of the declaration. Held: That defendant cannot, while claiming the benefits of the ruling in his favor on his pleas that plaintiffs should prosecute the action in their representative capacities, at the same time successfully contend that the note is inadmissible at the trial, but will be estopped from doing so.

Executors and trustees making contract after testator's death may sue to enforce contract either in individual or representative capacity. When a contract is made with executors and trustees personally, after the death of the testator, the executors and trustees may sue to enforce the contract either in their individual names or in their representative capacities. It will not concern the defendant whose liability is individual. The form of judgment is necessarily the same. And defendant's liability will be discharged by satisfaction of the recovery.

COUNSEL

Campbell & Campbell, of Ft. Myers, for plaintiff in error.

J. Winfield Hendry, of Tampa, for defendants in error.

OPINION

WEST Circuit Judge.

This is an action on a promissory note. The declaration is in substantially the form in common use in such cases in the courts of this state; the plaintiffs suing in their individual capacities. Upon a motion by plaintiff to strike designated parts of one plea, and the whole of two other pleas, on equitable grounds, there was a finding that the pleas sought to be stricken 'amount to a plea in bar, staying the proceedings in said cause,' because brought as individuals and not as executors of plaintiffs' decedent named in the pleas, whereupon the motion to strike was denied, with leave to plaintiffs to amend their declaration.

Thereafter plaintiffs filed an amended declaration, in which they sued as executors and trustees, under the last will and testament of Edward Marion Hendry, deceased. In essential allegations the amended declaration is identical with the original. The difference is in the capacity in which plaintiffs sue. The will under which they purport to act is referred to, its place of probate in the public records of Hillsborough county is recited, and reference thereto, as often as may be necessary, is prayed. The note sued on is attached to the declaration 'and made as much a part thereof as if set forth in haec verba.' It is payable to 'Julia A. Travers, Susie Linebaugh, and Joseph Frazier.'

The amended declaration was demurred to by defendant. The grounds of demurrer are, that the declaration is vague, indefinite, uncertain, insufficient, and sets forth no cause of action; that it fails to allege plaintiffs are, or were at the time of its filing, the duly qualified executors and trustees under said will; that it fails to allege plaintiffs have not been discharged as such executors and trustees; and fails to allege that certified copy of letters testamentary has been filed and recorded in Lee county, as required by law. This demurrer was overruled.

Pleas were filed by defendant. Demurrers to the first plea and pleas on equitable grounds were sustained. Demurrer to the third plea was overruled. Issue was joined on the third plea, and the case proceeded to trial, resulting in verdict and judgment for plaintiffs. Defendant took writ of error from this court.

There are seven assignments of error, but only the first, fourth, sixth, and seventh are insisted on here by argument in the briefs filed. So the second, third, and fifth are considered abandoned. Kloss et al. v. State (Fla.) 116 So. 39.

The order overruling the demurrer to the amended declaration is challenged by the first assignment of error. The only ground of the demurrer, in support of which there is any argument, is that the declaration is vague, indefinite, uncertain, insufficient, and sets forth no cause of action. The rule is that, unless it clearly appears from a reading of the declaration that it does not contain, by express allegations, or from fair inference to be drawn from its allegations, all the essential elements of a cause of action, a demurrer on this ground will not be available because of noncompliance with the statute requiring the substantial matters of law intended to be argued to be stated. L. & N. R. R. Co. v. Carr et al., 77 Fla. 469, 81 So. 779, 5 A. L. R. 102; Benedict Pineapple Co. v. A. C. L. Ry. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A. (N. S.) 92; German-Am. Lbr. Co. v. Brock, 55 Fla. 577, 46 So. 740.

The action is by plaintiffs in their representative capacities. The note sued on, and which is made a part of the declaration, is payable to plaintiffs as individuals. It appears from the note itself to be so. This it is, so defendant urges, that renders the declaration amenable to demurrer on the ground stated. But, as will appear from the discussion which follows, the declaration is not for that reason defective.

Upon the trial, the note sued on was offered in evidence. Its admission was objected to on the ground that plaintiffs are suing as executors and trustees, whereas the note is payable to them individually, and there is no evidence that it was given them as executors and trustees, or that the note is the property of the estate. The objections were overruled. This ruling is the basis of the fourth and sixth assignments of error.

That there was no evidence, at the time the note was offered, that it was given to plaintiffs as executors and trustees, did not render it inadmissible under the allegations of the declaration. Nor would failure to prove, preliminarily to its introduction in evidence, that the note was the property of the estate for which plaintiffs were acting, be grounds for excluding it. The note...