Tedder v. Green
| Decision Date | 24 April 1920 |
| Citation | 84 So. 623,79 Fla. 584 |
| Parties | TEDDER v. GREEN et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Suwannee County; M. F. Horne, Judge.
Action by N.H. Green and C. K. Green, doing business as Green Bros., against W. L. Tedder. Final judgment for plaintiffs, on demurrer to pleas, and defendant brings error. Reversed.
Syllabus by the Court
Where a plea is so framed that a defense may be proven under it, a demurrer thereto should not be sustained.
COUNSEL C. D. Blackwell, of West Palm Beach, and John F. Harrell, of Live Oak, for plaintiff in error.
H. E. Carter, of Live Oak, for defendants in error.
In an action on promissory notes, brought by the payees against the maker thereof, there was final judgment for the plaintiff on demurrer to pleas, and the defendant took writ of error. Three of the notes on their face stated that they were 'to be carried as per contract of this date.' Among the pleas held bad on demurrer was one averring that the sole consideration for the notes was the purchase price of timber sold under contract by plaintiffs to defendant, the plaintiffs retaining title to the timber till all the notes should be paid off and discharged, and that the plaintiffs did treat the timber as their own, and did retake the same, and did after the maturity of the notes enter upon the land, and cut, remove, and dispose of said timber, thus being estopped by their election. Other pleas averred failure of consideration and partial failure of consideration. These pleas are not accurately drawn, but a defense may be proven under them.
The demurrer thereto should have been overruled. The verdict in ancillary attachment proceedings merely found 'for the plaintiffs in attachment.'
Judgment reversed.
ELLIS, J., not participating.
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