Milligan v. Keyser

• Decision Date: 13 November 1906
• Citation: Milligan v. Keyser, 52 Fla. 331, 42 So. 367 (Fla. 1906)
• Parties: MILLIGAN et al. v. KEYSER et al.
• Court: Florida Supreme Court

42 So. 367

52 Fla. 331

MILLIGAN et al. v. KEYSER et al.

Florida Supreme Court, Division A.

November 13, 1906

Error to Circuit Court, Santa Rosa County; Francis B. Carter Judge.

Action by J. A. Milligan and others, trading as Milligan Mill Company, against W. S. Keyser and William Rudolph, copartners as W. S. Keyser & Co. Judgment for defendants, and plaintiffs bring error.Affirmed.

Syllabus by the Court

SYLLABUS

A declaration in an action at law should allege distinctly every fact that is essential to the plaintiff's right of action.

Where an action is brought to recover damages for the breach of an executory contract containing mutual undertakings, and those on the part of the plaintiff are to be performed before the defendants are to perform their part, the declaration should allege a performance by the plaintiffs of their undertakings or a sufficient excuse for nonperformance, and an allegation that it was the duty of the defendants under said contract to perform their part, without stating the facts imposing such duty, is not equivalent to an allegation that the plaintiffs had performed their part.

The statute and rule which require the contract upon which suit was brought, or a copy thereof, to be filed with the declaration, do not make the contract so filed a part of the pleading, and a copy of the contract annexed as an exhibit to a declaration cannot on demurrer be used to supply an essential allegation of fact omitted from the declaration.

In an action for the breach of a contract to buy and move lumber cut 'in accordance with sizes and prices in said contract stated,' in the absence of an allegation that the plaintiffs cut the lumber 'in accordance with the sizes and prices in said contract stated,' and of a legal excuse for not doing so, and there is no general allegation of performance by the plaintiffs, the declaration is demurrable.

In an action for breach of contract, an allegation in a count of the declaration of duty and obligation of the defendants under the contract is a mere conclusion, and, where the count does not contain allegations of fact showing the duty and obligation, it is demurrable.

In an action for breach of contract, allegations as to what the parties contemplated and intended cannot vary the terms of the contract sued on.

In an action for breach of a contract to buy and move 'all the lumber cut by plaintiffs' mill, * * * in accordance with sizes and prices in said contract stated,' an allegation that the defendants refused to move 'lumber cut by plaintiffs for defendants under the said contract' is not the equivalent of an allegation of refusal to move lumber cur 'in accordance with sizes and prices in the said contract stated,' and, when the count contains no other allegations sufficiently stating the breach, it is demurrable.

A count, in a declaration in an action for a breach of contract to buy and move lumber cut 'upon terms and conditions agreed upon,' which contains no allegations as to what were the terms and conditions and of facts showing a breach of the contract, is demurrable.

COUNSEL

Avery & Avery and Thomas F. West, for plaintiffs in error.

Blount & Blount, for defendants in error.On February 1, 1904, J. A. Milligan, S. B. Milligan, and W. F. Milligan partners trading as Milligan Mill Company, brought an action in the circuit court for Santa Rosa county against the defendants in error.Subsequently J. A. Milligan died, and the cause proceeded in the name of the plaintiffs in error as the surviving partners of the firm of Milligan Mill Company.The declaration as amended contained many counts, with a statement of damages appended.The plaintiffs discontinued all the counts of the declaration, except those numbered 1, 2, 4, 6, 7, 8, 9, 10, and 11, and in this court count numbered 11 is abandoned.

The counts of the declaration to be considered, and the contract annexed and referred to in counts numbered 1, 2, and 4, as Exhibit A, are as follows:

'For that, to wit, on the 1st day of October, A.D. 1902, the plaintiffs and defendants entered into a certain contract, a copy whereof is hereunto annexed marked Exhibit A and made a part hereof, whereby the plaintiffs agreed to sell and deliver unto the defendants and defendants agreed to buy from plaintiffs, all the lumber cut by plaintiffs' mill, situated at Milligan, Fla., during the year from the 1st day of November, A.D. 1902, to the 1st day of November, A.D. 1903, in accordance with sizes and prices in said contract stated, and that the defendants should move every size of the said lumber so contracted for at least once during said year; and the said plaintiffs aver that, notwithstanding the obligation of the said defendants to move every size of the said lumber cut by plaintiffs for defendants under said contract during the said year, from the 1st day of November, A.D. 1902, to the 1st day of November, A.D. 1903, the defendants neglected and refused to move the same, or any of the said sizes, during the said year, whereby the mill yards of the plaintiffs' said mill became so covered, piled up and blocked with lumber cut in said mill by plaintiffs for defendants, as to compel plaintiffs at times to cut less lumber, during the aforesaid year, than they could and would have cut in their said mill, and at times, during the year aforesaid, to suspend altogether the operation of plaintiffs' said mill, and for months after the 1st day of November, A.D. 1903 , to suspend altogether the operation of their mill, and prevented plaintiffs from contracting, as they could and would otherwise have contracted, for the cut of their said mill at prices then prevailing, and which were greatly in excess of those which plaintiffs, after the removal of said lumber by defendants, were able to obtain, because of the fall in the market price of such lumber; and plaintiffs aver that defendants had notice of the fact that their failure to remove said lumber, as above stated, would injure plaintiffs in the manner aforesaid, and after such notice, and against the demand of plaintiffs, refused to remove the same; and plaintiffs aver that by reason of the said premises plaintiffs lost, to wit, the sum of twenty thousand dollars ($20,000.00).And

'(2) For that, to wit, on the 1st day of October, A.D. 1902, the plaintiffs and defendants entered into a certain contract, a copy whereof is hereunto annexed marked Exhibit A and made a part hereof, whereby the plaintiffs agreed to sell and deliver unto the defendants, and defendants agreed to buy from the plaintiffs, all the lumber cut by plaintiffs' mill situated at Milligan, Fla., during the year from the 1st day of November, A.D. 1902, to the 1st day of November, A.D. 1903, in accordance with sizes and prices in said contract stated, and that the defendants should move such lumber from plaintiffs' mill yard at plaintiffs' expense; and plaintiffs aver that it was the duty of the defendants, under the said contract, to move from plaintiffs' said mill yard lumber cut by plaintiffs for defendants under the said contract, at such times and in such quantities as to avoid so covering up and blocking said mill yard as to interfere with the operation of said mill; and plaintiffs aver that, notwithstanding the premises, the defendants refused to so move such lumber, but left the same on said mill yard in such quantities as to cover and block the same, and interfere with the operation of the said mill, and to compel plaintiffs at times to cut less limber during the year aforesaid than they could and would have cut in their said mill, and at times during the year aforesaid, and for months thereafter, to suspend altogether the operation of their said mill, and to make it impossible for plaintiffs to contract, as they could and would otherwise have contracted, for the cut of their mill at prices then prevailing, and which were greatly in excess of prices which plaintiffs, after the removal of said lumber by the defendants, were able to obtain, because of the fall in the market price of such lumber; and plaintiffs aver that defendants had notice of the fact that their failure to move said lumber, as above stated, would injure plaintiffs in the manner aforesaid, and after such notice, and against the demand of the plaintiffs, refused to move the same; and plaintiffs aver that by reason of the said premises plaintiffs lost, to wit, the sum of twenty thousand dollars ($20,000.00).And'

'(4) For that, to wit, on the 1st day of October, A.D. 1902, the plaintiffs and defendants entered into a certain contract, a copy whereof is hereunto annexed marked Exhibit A and made a part hereof, whereby the plaintiffs agreed to sell and deliver unto the defendants, and defendants agreed to buy from the plaintiffs, all the lumber cut by plaintiffs' mill, situated at Milligan, Fla., during the year from the 1st day of November, A.D. 1902, to the 1st day of November, A.D. 1903, in accordance with sizes and prices in said contract stated, and that the defendants should move every size of said lumber so contracted for, at least once a year; and the said plaintiffs further aver that it was also the duty of the defendants under the said contract to move from plaintiffs' said mill yard lumber cut by plaintiffs under the said contract, at such times and in such quantities and to such extent as to avoid so covering up and blocking said mill yard as to interfere with the operation of said mill; and plaintiffs aver that, notwithstanding the premises, the defendants refused to so move any of the said sizes during the said year, and refused to move, during said year and for months thereafter from plaintiffs' mill yard, lumber cut by plaintiffs under the said contract at such times and in such

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