Marshall v. Bumby
| Citation | 25 Fla. 619,6 So. 480 |
| Parties | MARSHALL v. BUMBY. |
| Decision Date | 20 July 1889 |
| Court | United States State Supreme Court of Florida |
Appeal from circuit court, Marion county; J. J. FINLEY, Judge.
Assumpsit by Joseph Bumby against Samuel F. Marshall. The cause was referred by consent, and judgment rendered for plaintiff. From an order overruling defendant's motion for a new trial this appeal is taken.
Syllabus by the Court
1. Where, in a common-law action, a defense on equitable grounds consists of matter clearly available as a defense at law, the court, without motion, should strike it out. Such a defense is admissible only when it sets up matter for which, in the event of a judgment at law, equity would, on account of the equities set up, give him relief against the judgment.
2. It is a well-settled principle of law that a conditional acceptance does not become due until the happening of the contingency upon which it is accepted.
3. H contracted to erect two houses for M. H. drew an order on M (defendant,) who was the agent for M., with whom H. had contracted, in favor of B., (plaintiff,) for $245, which order the defendant accepted, to be paid when the houses were completed. B. brought suit on the acceptance, and alleged in his declaration that the houses were completed when suit was brought, which defendant denies by his plea. The cause was submitted to a referee, who took the testimony, (which is conflicting as to whether or not the houses were completed when suit was brought,) and rendered judgment in favor of the plaintiff for the amount of the acceptance. Held, that it was the duty of the referee to reconcile the conflict in the testimony, if he could, but if he could not do so it was his duty to discard any testimony he did not believe, and to render his judgment upon the testimony he believed to be true.
COUNSEL S. D. McConnell and Miller & Spencer, for appellant.
R. L. Anderson, for appellee.
The appellee, plaintiff in the court below, instituted action of assumpsit against the appellant in the circuit court, and the declaration alleges that one R. C. Humeston, on the 24th day of March, 1884, made his bill of exchange in writing, and directed the same to the defendant, and thereby requested the defendant to pay to the order of the plaintiff $245 for material furnished on Mr. Martin's two houses, to be paid as soon as said houses were completed, which period had elapsed before the commencement of this suit; and the defendant, on the 25th day of March, 1884, accepted the same and promised the plaintiff to pay the same according to the tenor and effect thereof, and of his acceptance thereof, and plaintiff avers that the said two houses in said bill of exchange mentioned were completed before the commencement of this suit, and said sum of $245 is now due, and has been due since the 16th day of June, 1884. The declaration also contains the common counts for work and labor done by plaintiff for defendant at his request, and for money paid for use of defendant, etc.
1. In the first plea defendant admits that he accepted the order attached to the declaration upon the terms and conditions set forth therein, but denies that said terms have been complied with, and says that said acceptance is not due.
2. Defendant says that the acceptance of said order was wholly without consideration, which fact was known to the plaintiff at the date of the acceptance.
3. That the consideration of his acceptance of said order has totally failed.
So far as the transcript of the record shows, the pleas were not demurred to, nor was any issue joined thereon, but the cause was tried upon the pleadings as given above. The declaration (amended) was filed October 23, 1884, and said pleas were filed on the same day. By consent the cause was submitted to Hon. J. J. Finley, referee, for final determination in accordance with the statute in such cases made and provided. The referee took the evidence, and rendered his findings, and gave judgment in favor of the plaintiff for the full amount of defendant's said acceptance, of April, 1884, and also the costs of suit. day of April, 1884, and also the costs of suit. Defendant moved for new trial, which motion was overruled and defendant appealed.
The following errors are assigned: (1) That the court erred in striking the second original plea of appellant; (2) that the referee erred in his fourth, tenth, eleventh, and twelfth findings of fact in said cause; (3) that the referee erred in all his conclusions of law based upon the evidence as set forth in his report; (4) that the referee erred in rendering judgment for the appellee; (5) that the referee erred in refusing to grant appellant's motion for a new trial.
There was no error in the order of the court striking the second original plea Spratt v. Price, 18 Fla. 289. In that case the court say: The defendant could and did make his defense to the action under his amended plea fully as to every right he had in the case, and for this reason he was not injured in any manner by the order of the court striking the second original plea, even admitting that the court erred in striking said plea. But was there any error in striking the said plea? If so, we fail to see it. There was neither ground nor necessity for an equitable plea.
The findings of the referee contain a correct statement of the facts of the case as follows:
(1) That one R. C. Humeston and one A. M. Martin did, on the 19th day of February, A. D. 1884, enter into a written contract whereby the said Humeston agreed and undertook to furnish the material and labor for the same, and to contract and erect for the said Martin two dwelling-houses in the town of Ocala, according to certain specifications, (which, together with the said written contract, are filed herewith as evidence in the case,) and in consideration thereof the said...
To continue reading
Request your trial
-
Realty Bond & Share Co. v. Englar
...Co., 50 Fla. 244, 39 So. 789; Robeson v. First Nat. Bank, 42 Fla. 504, 29 So. 325; Spratt v. Price, 18 Fla. 289; Marshall v. Bumby, 25 Fla. 619, 6 So. 480. pending of another suit may be set up in actions at law by pleas in abatement, but to be good they should allege that the former suit w......
-
Harper v. Bronson
...... Sutherland-Innes Co., 50 Fla. 244, 39 So. 789;. Robeson v. First National Bank, 42 Fla. 504, 29 So. 325; Spratt v. Price, 18 Fla. 289; Marshall v. Bumby, 25 Fla. 619, 6 So. 480. The matters set out in. the plea are available as a defense at law, as shown herein. The court committed no ......
-
Seaboard Air Line Ry. Co. v. Dorsey
...... by equitable pleas. Robeson v. First Nat. Bank, 42. Fla. 504, 29 So. 325; Marshall v. Bumby, 25 Fla. 619, 6 So. 480; Pensacola Lumber Co. v. Sutherland-Innes. Co., 50 Fla. 244, 39 So. 789; Spratt v. Price, . 18 Fla. 289. . ......
-
Love v. Brown Development Co. of Michigan
...between the parties; and that the said sum of $812.50 should have been returned to the plaintiff in error or to her agent. Marshall v. Bumby, 25 Fla. 619, 6 So. 480. In C.J. 29, it is stated that: 'An action for money had and received * * * may, in general, be maintained whenever one has mo......