Sullivan v. Arbuthnot

• Decision Date: 25 February 1941
• Citation: 146 Fla. 280,200 So. 702
• Court: Florida Supreme Court
• Parties: SULLIVAN v. ARBUTHNOT.

200 So. 702

146 Fla. 280

SULLIVAN v. ARBUTHNOT.

Florida Supreme Court, Division A.

February 25, 1941

Error to Circuit Court, Hendry County; George W. Whitehurst, Judge.

Assumpsit by C. L. Arbuthnot against W. L. Sullivan to recover on certain pastdue promissory notes. From a judgment for plaintiff, defendant brings error.

Judgment affirmed.

COUNSEL Errol S. Willes, of Fort Pierce, for plaintiff in error.

Louis O. Gravely, of La Belle, for defendant in error.

OPINION

BUFORD Justice.

Arbuthnot was plaintiff in the court below and sued Sullivan in assumpsit and in his declaration alleged:

'For that the said defendant W. L. Sullivan on the 5th day of January A. D. 1939 by his four promissory notes now over due promised to pay to the order of the plaintiff Four Hundred dollars ($400.00) December 5th after date with interest from date at the rate of 8 per cent per annum payable at LaBelle, Florida; but did not pay the same nor any part of the principal nor interest thereof; that in and by said promissory notes, the defendant promised and agreed that in case suit should be brought for the collection thereof or if the same were collected by an attorney to pay a reasonable fee for prosecuting such suit or making such collections, that said notes were not paid at maturity and was thereafter placed in the hands of an attorney at law for collection and suit instituted thereon.

'Wherefore plaintiff claims principal and interest and a reasonable attorney's fees.

'To the damage of said plaintiff in the sum of $2,000.00 and therefore he brings suit.'

To the declaration he attached three promissory notes dated LaBelle, Florida, January 5, 1939, for $100 each, the first payable September 5th after date, the next payable November 5th after date, and the third payable on December 5th after date.

Defendant demurred to the declaration. The demurrer was overruled and the defendant required to plead.

The declaration, except for the bill of particulars, was sufficient to state a cause of action for the recovery of $300 and interest.

The bill of particulars attached to the declaration consisted of copies of three notes as stated above. The copies of the notes were made a part of the declaration, not be words in the declaration but by the rule infra and, therefore, under our present practice, demurrer to the declaration would reach the bill of particulars. See Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Poppell v. Culpepper, 56 Fla. 515, 47 So.351. Rule 16 of Common Law Rules adopted April 27, 1936, and becoming effective October 1, 1936, provides, inter alia:

'Declaration--Attaching Copy of Cause of Action.--(a) All bonds, notes, bills of exchange, contracts and accounts upon which suit may be brought, or a copy thereof, or a copy of the portions thereof material to plaintiff's cause of action, shall be filed with the declaration and shall be taken and considered as a part thereof.'

So it is that the declaration including the bill of particulars attached thereto showed that the amount of the demand was less than $500 but still within the jurisdiction of the Circuit Court of Hendry County.

It has been held that demurrer tests the cause of the action as stated in the declaration, and not the measure of damages. Harris v. Cocoanut Grove Development Co., 63 Fla. 175, 59 So. 11.

It has also been held that where...