Savage v. Ross

• Decision Date: 15 March 1910
• Citation: 59 Fla. 407,52 So. 16
• Parties: SAVAGE et al. v. ROSS.
• Court: Florida Supreme Court

52 So. 16

59 Fla. 407

SAVAGE et al. v. ROSS.

Florida Supreme Court

March 15, 1910

Headnotes Filed April 19, 1910.

In Banc. Error to Circuit Court, Duval County; R. M. Call Judge.

Action by Herbert W. Savage and Thomas P. Denham against Roderick G Ross. Judgment for defendant, and plaintiffs bring error. Reversed.

Syllabus by the Court

SYLLABUS

In an action at law on a written lease to recover rent in one count of the declaration, and for a breach of covenant in a second count, when the written lease is made a part of each count the question of a variance between the terms and conditions of the lease itself and the claims set up in the declaration cannot properly be raised on the trial by objecting to the introduction in evidence of the written lease under the plea of non est factum. This question should be presented by demurrer to the declaration.

COUNSEL Robert A. Baker, for plaintiffs in error.

Bisbee & Bedell, for defendant in error.

OPINION

HOCKER J.

The plaintiffs in error brought a suit at law against the defendant in error in the circuit court of Duval County. The declaration contains two counts; the first, in substance, declaring upon a lease for rent alleged to be due under the terms and conditions of an instrument under seal, called a 'lease,' and the second as upon a breach of covenant contained in said instrument. This lease is made a part of each count of the declaration. The defendant pleaded three pleas: First, that the alleged indenture is not his deed; second, that there was in and upon the land mentioned in the declaration no mineral for which the defendant covenanted to pay 50 cents per gross ton as in said declaration mentioned; and, third, that there was in and upon the land mentioned in the declaration no mineral for which the defendant covenanted to pay 50 cents per gross ton, suitable or practicable to be mined. Issue was joined on the first plea, and a demurrer was interposed to the second and third pleas, which was sustained. On the trial the plaintiff offered in evidence the lease set out in the declaration, to the introduction of which the defendant, after admitting in open court that the signature and seals to said paper were all genuine, objected to its being read in evidence. The objections cover five pages of the typewritten copy of the record. The contention, sifted down, is, as we understand it, that the true meaning of the lease is that the defendant was not required to pay royalties or ground rent on rock not shipped from the land, and it is not alleged that rock was moved and shipped; second, that the declaration alleges the defendant covenanted to pay for the rock shipped at the residence of the plaintiff, whereas the lease provides payment shall be made to the Atlantic National Bank, of Jacksonville; and, third, that the declaration demands money in any lawful tender, and the lease provides for payment in gold coin. This contention was sustained by the circuit judge. The plaintiff took a nonsuit, suffered a final judgment against himself, and has brought to this court the correctness of this ruling of the trial judge on writ of error. This brings us face to face with the question whether, under the plea of non est factum in this particular case, the objections which were made could properly be made. The practice of making the cause of action, such as a deed or other instrument, a part of the declaration, or of literally copying it in the declaration as a part of it, is hardly consistent with the rule which requires that such instruments, except in cases of libel, should be pleaded according to their legal effect. Shipman's Common-Law Pleading (2d Ed.) 459, 460; 1 Chitty on Pl. (16th Ed.) bottom page 483.

If there is a doubt as to the legal effect of an instrument, it seems to have been permitted. 1 Saunders on Pl. & Ev. (5th Am. Ed.) 194; 1 Chitty, supra.

It has occurred in a number of cases which have come to this court, and as the parties have consented to this method of pleading in the courts below, this court has treated the records as it found them. First Nat. Bank of Florida v. Savannah, F. & W. Ry. Co., 36 Fla. 183, text 193, 18 So. 345. See, also, the exhaustive discussion of this question in the case of State v. Seaboard Air Line Ry., 56 Fla. 670, text 679, 47 So. 986, and cases cited.

In the instant case we are required to construe the effect and scope of a plea of non est factum to a declaration in which the lease which is the foundation of the suit is made a part of the declaration. The record is in practically the same condition as if at common law oyer of the lease had been craved and granted, and the lease had thereby been made a part of the declaration. In this situation it is said in 1 Chitty on Pleading (7th Eng. Ed., by Greening) bottom page 561: 'The tenor of the deed, as it appears upon oyer, is considered as forming part of the precedent pleading, and therefore, if the breach laid in the declaration be not supported by the deed--in other words, if the deed thus set out in the plea be found to contain in itself matter of objection or answer to the plaintiff's case as stated in the declaration--the defendant's course (after setting out the deed on oyer) is to demur, not to make the objection the subject-matter of a plea. The defendant may demur after setting out the deed on oyer, if in the declaration any part of the deed, which qualifies the contract as shown in the declaration, or which renders it dissimilar to that described in the declaration, be omitted or misstated by the plaintiff therein.' It is further stated: 'Should the true effect and meaning of the deed be misstated in the declaration, the variance is cured and becomes immaterial, if the deed be set out in the plea on oyer, and non est factum be pleaded; for on that issue the only question at the trial is whether the deed as set out in the plea was executed by the defendant or not, and the jury are not competent to decide what is the legal effect of the deed. In such case the defendant had better plead non est factum, without craving oyer; and then the question would be whether the deed as described in the declaration was executed by the defendant.' The common-law rule seems to have been this:...