Thomas v. Walden
| Decision Date | 16 February 1909 |
| Citation | 57 Fla. 234,48 So. 746 |
| Parties | THOMAS et al. v. WALDEN et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.
Action by J. C. Walden and others against A. C. Thomas and others copartners as Thomas Bros. & Co. Judgment for plaintiffs, and defendants bring error. Affirmed.
Syllabus by the Court
'Not guilty' and 'never indebted' are not proper pleas in actions upon express contracts.
The pleader should specify the condition precedent, the performance of which he intends to contest.
After issue has been joined upon a pleading not wholly bad, a demurrer ore tenus thereto is not a matter of right at the trial.
The refusal to permit the filing of additional pleas must be excepted to, and form part of the bill of exceptions, to be reviewed.
When vendors are whooly unable to give title to a considerable portion of land contracted to be sold, strict legal tender by the vendee is not necessary.
COUNSEL W. B. Farley and J. M. Calhoun, for plaintiffs in error.
C. L Wilson, for defendants in error.
This is an action wherein Walden and others obtained judgment for the primary payment upon a contract to convey.
The declaration sets out the contract, the payment of $1,000 upon its execution, and alleges the failure of the verdors to convey by reason of inability to give title to a substantial part of the lands. There was a demurrer interposed to the declaration, which does not appear ever to have been brought to the attention of the court, and will not be considered.
The pleas upon which issue was joined and trial had were, first 'not guilty,' which has no place in actions for breach of contract; and, second, 'that these defendants are now and have always been ready and willing to perform said contract according to the terms thereof, had the plaintiffs paid the amount they agreed to pay on the date thereof,' the exact meaning of which is not clear to us. There appears on the record a plea of 'never indebted,' which it is asserted in the brief was stricken. We find no such order, but the plea is wholly inapplicable to counts on express contracts. Section 1467 Gen. St. 1906. Demurrers were sustained to two pleas that were in direct violation of the statutory requirement that the pleader shall specify the condition precedent the performance of which he intends to contest. Section 1436, Gen. St. 1906.
The fifth plea came near properly setting forth a defense. It alleges readiness and willingness to perform at the time; but that the plaintiffs did not tender the amount of money then due. To this plea was filed a replication of waiver of legal tender, upon which issue was joined. At the trial a...
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