Mcdougald v. Bass

• Decision Date: 16 April 1907
• Citation: 53 Fla. 142,43 So. 778
• Parties: McDOUGALD v. BASS et al.
• Court: Florida Supreme Court

43 So. 778

53 Fla. 142

McDOUGALD v. BASS et al.

Florida Supreme Court, Division A.

April 16, 1907

Error to Circuit Court, Lee County; Joseph B. Wall, Judge.

Action by Charles A. McDougald against Carrie Bass and Shep C. Bass. Judgment for defendants, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a declaration containing a special count and common counts is demurred to as a whole, and any one of the counts states a cause of action, the demurrer should be overruled.

COUNSEL Wilson & Wilson, for plaintiff in error.

Hilton S. Hampton and Robt. W. Davis, for defendants in error.

OPINION

WHITFIELD J.

The plaintiff in error brought an action of assumpsit against the defendants in error in the circuit court for Lee county. The declaration consists of three special counts and four common counts. The first count alleges that on September 19, 1899 the defendant Carrie Bass, who was then a feme sole, but who subsequently in 1900 married the defendant Shep C. Bass employed the plaintiff as her agent at $100 per month; that plaintiff rendered the service required till November 19 1905, and defendants have not paid. The second count contains similar allegations, and also alleges that the defendant Carrie Bass, 'being the duly appointed and qualified administratrix of the estate of Irvin Locklear and engaged in the performance and discharge of her duties as such, did then and there employ plaintiff to take charge of and assume control of the affairs of him, the said Irvin Locklear, * * * and agreed to and with the plaintiff to pay him for such services thereafter to be by him performed the sum of $100 per month from the date of said contract of employment'; that said service was rendered and has not been paid for. The third count alleges that on December 9, 1899, the defendant Carrie Bass, a feme sole, was by name of Carrie Locklear duly appointed and qualified as guardian of the minor children of her late husband, and then and there employed plaintiff to represent her and her said wards in the administration of the affairs pertaining to said guardianship, and to look after and superintend the interest of the said Carrie Bass as such guardian and her said wards; that such service was rendered from December 9, 1899, to November 19, 1905, and has not been paid for. Damages in $10,000 are claimed in each of these three counts and in the common counts. The copy of the cause of action filed with the declaration is a statement of 'services rendered Carrie Bass in the capacity of heir at law and as administrator of the estate of Irvin Locklear, deceased, and as guardian of Bunchie Locklear and Irvin Locklear, from September 19, 1899, to the 19th day of November, 1905, at $100 per month, $7,400.'

The defendants demurred on the grounds that: 'The said declaration and each count thereof is vague and insufficient in its allegations. The said counts contained in the said declaration are repugnant to each other. The said plaintiff seeks to charge the defendant in different capacities, in one count as an individual, and in another count as administratrix, and in a third count as guardian.' The demurrer was sustained, and the action...