Tedder v. Fraleigh-lines-smith Co.

Decision Date15 April 1908
PartiesTEDDER v. FRALEIGH-LINES-SMITH CO.
CourtFlorida Supreme Court

Rehearing Denied May 14, 1908.

Error to Circuit Court, Suwannee County; Bascom H. Palmer, Judge.

Action by the Fraleigh-Lines-Smith Company against W. L. Tedder. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under the provisions of rules 66 and 67 governing the practice in the circuit courts in common-law actions, and of section 1465, Gen. St. 1906, an alleged alteration in a promissory note or other instrument sued upon must be specially pleaded.

Under a plea of non est factum, or under a general plea simply denying in toto the execution, making, and delivery of the instrument sued upon, an alleged alteration in such instrument that has the effect of avoiding it cannot be shown or proven. In order to prove such alleged alteration, it must be specially alleged by plea.

Where error is predicated upon the court's refusal to permit the filing of an amended or additional plea, the proffered plea so excluded must be properly exhibited to the appellate court in the transcript of record; otherwise, its exclusion by the trial court will be presumed to have been proper.

Where the evidence fully makes out the plaintiff's case, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff's favor is proper.

COUNSEL Ira J. Carter and J. B. Johnson, for plaintiff in error.

Hardee & Butler, for defendant in error.

OPINION

TAYLOR J.

The defendant in error, hereinafter referred to as the plaintiff sued the plaintiff in error, hereinafter referred to as the defendant, in assumpsit in the circuit court of Suwannee county upon a promissory note, and recovered judgment, from which the defendant below takes writ of error.

To the declaration the defendant filed the three following pleas in substance:

(1) That he denies that he made, executed, and delivered the note sued upon on the date as alleged, or at any other time.

(2) That the pretended note sued on in this cause is not his note.

(3) That he neither signed or delivered, nor did not authorize the signing or delivery of, the pretended note sued on herein.

After the note sued upon had been introduced in evidence, and the signature of the defendant thereto duly proven, and that the same was due and unpaid, the defendant as a witness on his own behalf offered to testify that at the time of the signing and making by him of the note sued on the same stipulated for the payment of interest after maturity, the note being payable six months after its date, but that subsequently to its making by him, and without his knowledge or consent, the word 'maturity' was unauthorizedly erased from said note and the word 'date' substituted therefor in writing, which alteration made the note stipulate for interest after date, instead of after maturity, and which unauthorized alteration avoided the note.

This evidence was excluded by the court on objection by the plaintiff, and such ruling is assigned as error.

There was no error in such ruling. Rules 66 and 67 governing the practice in the circuit courts in common-law actions provide as follows:

'66. In every species of actions on contract, all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded.
'67. In actions on specialties and covenants the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defenses shall be
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15 cases
  • First National Bank v. Ford
    • United States
    • Wyoming Supreme Court
    • July 17, 1923
    ... ... Trenery, 9 Ad. & El. 926, 112 Eng. Rep ... 1465; Hessig-Ellis Drug Co. v. Todd Baker Drug Co., ... 153 Iowa 11, 132 N.W. 866; Tedder v. Fraleigh-Lines-Smith ... Co., 55 Fla. 496, 46 So. 419; Grand Lodge K. P. v ... State Bank, 79 Fla. 471, 84 So. 528; Commercial ... ...
  • Gravette v. Turner
    • United States
    • Florida Supreme Court
    • March 29, 1919
    ... ... Trueman, 63 Fla. 184, ... 57 So. 663; Berryhill-Cromartie Co. v. Manitowoc ... Shipbuilding & Dry Dock Co., 66 Fla. 170, 63 So. 720; ... Tedder v. Fraleigh-Lines-Smith Co., 55 Fla. 496, 46 ... So. 419; Bell v. Niles, 61 Fla. 114, 55 So. 392; ... Campbell v. McLaurin Investment Co., 74 Fla ... ...
  • Anderson v. Southern Cotton Oil Co.
    • United States
    • Florida Supreme Court
    • February 23, 1917
    ... ... directing a verdict for one of the parties, an appropriate ... judgment rendered on such directed verdict will not be ... disturbed. Tedder v. Fraliegh-Lines-Smith Co., 55 ... Fla. 496, 46 So. 419; Wade v. Louisville & N. R ... Co., 54 Fla. 277, 45 So. 472; Bass v. Ramos, 58 ... Fla ... ...
  • New England Mut. Life Ins. Co. v. Huckins
    • United States
    • Florida Supreme Court
    • March 24, 1937
    ... ... case, and there is no evidence to contradict or rebut it, a ... peremptory charge for a verdict in the plaintiff's favor ... is proper. Tedder v. Fraleigh-Lines-Smith Co., 55 ... Fla. 496, 46 So. 419; Investment Co. v. Trueman, 63 ... Fla. 184, 57 So. 663; Bland v. Fidelity Trust Co., ... ...
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