Riedel v. J.R. Watts & Sons, Inc.

• Decision Date: 24 January 1935
• Court: Florida Supreme Court
• Parties: RIEDEL v. J. R. WATTS & SONS, Inc.

158 So. 890

118 Fla. 285

RIEDEL v. J. R. WATTS & SONS, Inc.

Florida Supreme Court

January 24, 1935

En Banc.

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Suit by C. E. Riedel against J. R. Watts & Sons, Inc. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

ELLIS P.J., and BUFORD, J., dissenting in part, and BROWN, J dissenting.

COUNSEL A. Melrose Lamar, of West Palm Beach, for plaintiff in error.

Boozer & Boozer, of West Palm Beach, for defendant in error.

OPINION

BUFORD Justice.

A suit by attachment was instituted on behalf of C. E. Riedel against J. R. Watts & Sons, Inc. The declaration was one on breach of covenant to pay a note in the sum of $329.56, with interest. There was one plea, a plea of payment, as follows: 'That before action it discharged and satisfied plaintiff's claim by payment.'

Plaintiff proved the covenant and the breach. Defendant tendered no evidence of payment.

The evidence submitted, if it tended to prove any defense, was one of accord and satisfaction. That was not pleaded, and, therefore, such evidence was irrelevant and immaterial and should have been excluded on timely objection being made.

It is elementary that when the plaintiff has produced sufficient evidence to establish his cause of action and right to recover, a defendant who has pleaded payment then takes the burden of proving payment, and the proof of some other defense will not suffice, nor warrant a verdict and judgment in his favor.

The judgment should be reversed and the cause remanded for a new trial.

It is so ordered.

Reversed and remanded.

WHITFIELD, C.J., and TERRELL and DAVIS, JJ., concur.

ELLIS, P.J., concurs specially.

BROWN J., dissents.

CONCURRING

ELLIS, Presiding Justice (concurring).

I agree that the judgment should be reversed, but I think the parties should settle the pleadings before proceeding to trial.

The declaration was treated as one in covenant which it seemingly was intended to be, although it does not allege the delivery of the deed in terms. That defect is remedied by the instrument itself, which was made a part of the declaration and shows in the attesting clause that it was signed, sealed, and delivered. The time of making the covenant is inferentially stated as that the deed bore a certain date. The part of the covenant relied upon as giving a basis for the action is not clearly stated, the allegation being that the defendant covenanted to pay to the plaintiff the sums of money evidenced by a certain promissory note, copy of which is attached to and made a part of the declaration. 'Exhibit 'A', viz.: $329.56, payable on or before six months after date.'

The covenant is to 'pay all and singular the principal and interest and other sums of money payable by virtue of said promissory note and this deed, or either, promptly on the days respectively the same severally come due.'

The exhibit shows a note payable on or before six months after date. The note described in the deed is one 'due June 31st, 1928.' Money, which may be payable by...