Mallard v. Ewing

• Court: United States State Supreme Court of Florida
• Citation: 164 So. 674,121 Fla. 654
• Decision Date: 05 April 1935
• Parties: MALLARD v. EWING.

164 So. 674

121 Fla. 654

MALLARD
v.
EWING.

Florida Supreme Court, Division B.

April 5, 1935

On Rehearing December 19, 1935.

Rehearing Denied Jan. 6, 1936.

Suit by Charles M. Ewing against Daisy O. Mallard, wherein defendant filed a counterclaim. From a decree in favor of complainant, defendant appeals.

Decree affirmed in part, and reversed in part with instructions.

On Rehearing. [164 So. 675] [121 Fla. 656] Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Robert C. Lane, of Miami, for appellant.

Brown & Wood, of Miami, for appellee.

OPINION

ELLIS, Presiding Justice.

Daisy O. Mallard, the appellant in this case, owed Charles M. Ewing $2,000 and gave her promissory note to him in that sum payable two months after its date.

The note was dated June 1, 1933, and the payment of it was secured by a mortgage upon a lot of land in Coral Gables. The day after the due date of the note Ewing exhibited his bill in the circuit court for Dade county to enforce the lien of the mortgage. A copy of the mortgage is attached to the bill of complaint. Neither the promissory note nor a copy of it is attached to the bill. The mortgage, however, contains a copy of it. The note contained a clause providing that the maker agrees to pay a 'reasonable attorney's fee in case the principal of this note or any payment on the principal or any interest thereon is not paid at the respective maturity thereof, or in case it becomes necessary to protect the security hereof, whether suit be brought or not.'

The bill does not allege that the complainant is either the owner or holder of the note and a motion to dismiss the bill was made on that ground and was denied.

The defendant answered setting up a counterclaim which it is averred arose in the following manner: At the time the defendant purchased the property from Ewing, the latter agreed to transfer and deliver to her all the furniture, furnishings, and fixtures contained in the 'Margoel Apartments' located upon the lot purchased; that there was to be excepted therefrom only one lamp, a picture, and a small table located in apartment 1; that all other furnishings, furniture, [121 Fla. 657] and fixtures contained in the apartments were purchased by the defendant from Ewing and his wife; that Ewing also agreed to pay rent to the defendant for the use of apartment 2, a reasonable and fair rental for the same; that Ewing became indebted to the defendant for the rental of the apartment for the month of June, 1933, and for three weeks during the month of July, 1933, and that a reasonable rental of the apartment for that length of time was $87.50; that at the time Ewing delivered the Margoel Apartments to the defendant he removed therefrom various items of furniture amounting in value of $141.25. A list of the furniture removed is set out in the answer.

So the defendant alleges that the amount of her counterclaim against the complainant [164 So. 676] is $228.75, which deducted from the principal and interest due on August 1st, the due date of the note, left a balance of $1,797.92, which sum the offered and tendered to pay to Ewing on August 1, 1933, but which he refused to accept.

The answer also avers that the defendant owes nothing to the complainant on account of solicitor's fees.

A motion was made to strike from the answer the facts averred as constituting the counterclaim. The chancellor granted that motion, but later annulled that order and denied the motion to strike the matters of fact pleaded as a counterclaim. That order is made the basis of the appellee's cross-assignment of error.

The complainant then filed a replication to the defendant's answer in which he undertook to plead 'not guilty' to what he construed as an averment in the defendant's [121 Fla. 658] answer of a conversion of personal property, and alleged that he agreed to pay a rental of $35 per month for the apartment, which was the sum charged other tenants, and he tendered to the defendant a sum of money computed on that basis but the defendant refused to accept it. The replication also alleges that the counterclaim made up of the two items of damages for conversion of personal property amounting to $141.25 and the sum of $87.50 for rent of the apartment are triable in a court of law and not in equity.

Whatever name may be given to that document, it was wholly out of place and unknown to the practice in this state under chapter 14658, Acts 1931, known as the Chancery Act, which definitely by section 37 abolishes general replications. Certainly no plea of not guilty or never was indebted has any place in a suit in equity. Special replications were pleadings in confession and avoidance and have long been superseded by the practice of amending the bill and are entirely obsolete. See McCarthy's Annotation to section 37, Chancery Act, supra.

If the counterclaim set up in the answer be regarded as averring any new or affirmative matter, it is deemed under section 37, Chancery Act, supra, to be denied by the plaintiff. If a reply to the counterclaim with a prayer for affirmative relief was necessary, the complainant should have set up the facts relied upon in answer to the counterclaim.

The replication in so far as it relates to part of the counterclaim, consisting of a claim for rent of the apartment, may be regarded as setting up the facts relied upon in answer to that part of the counterclaim, but it was wholly unnecessary even if it constituted a counterclaim, because the facts therein alleged would be admissible under the denial deemed to be made by the complainant.

[121 Fla. 659] The court, however, denied a motion to strike the replication, which motion rested upon the ground that the replication was not filed within the time required by section 38 of the Chancery Act, supra. That order was erroneous, as was the order denying the motion to strike the replication.

These orders, however, were of no material effect, as the case proceeded to the taking of testimony all of which may have been done without a replication such as was interposed.

A special master was appointed to take the testimony and report to the court his findings of law and fact.

The substance of the report on the facts was that the defendant purchased from the complainant an apartment house together with certain furniture therein located; that the transaction was consummated as of June 1, 1933, 'although the actual recording of the papers and probably the delivery of them, was actually consummated a few days later.' The master found that the 'transaction was closed by the execution of a deed by the complainant, who accepted as part of the purchase price the note of the defendant, secured by a mortgage for $2,000.00 due August 1st, 1933, and that also the furniture was conveyed by a bill of sale with an inventory of the same attached.'

His findings relating to the charge for rent of one apartment were that the complainant demanded $50 per month but afterwards agreed to accept $35 per month and then refused to accept a settlement on that basis.

The bill of sale was dated May 23, 1933, and purported to sell and transfer the 'following goods and chattels: Furniture, furnishings and fixtures contained in the Margoel Apartments, at 32 Avenue Santillane, Coral Gables, [121 Fla. 660] Florida, more particularly described as follows.' The record shows that the inventory of the furniture was included in the document called a bill of sale, but the master found that the inventory of the furniture was 'attached' to the instrument. He also found that as the list of furniture for the value of which the defendant set up a counterclaim was not included [164 So. 677] in the 'bill of sale of the furniture delivered at the time the transaction was closed,' the defendant was not entitled to the furniture set forth in the counterclaim.

The master also found that neither claim of the defendant was 'the proper subject matter of a set-off against the foreclosure of a mortgage for the reason that they arose independent of the execution of the mortgage; but since the court has denied the motion to strike these portions of the answer, the Master feels obligated to make a finding upon the equities of the case independent of the question of the pleadings.' He proceeds then to find that as the 'bill of sale contains no blanket clause nor purports to cover any furniture except that which is therein listed, the Master is of the opinion that the defendant is not now and never was entitled to the...