Crump, Administrator, Appellant, vs. Perkins, Administrator, Appellee, 18 Fla. 353

Mr. Justice Westcott delivered the opinion of the court. The respondent in this case seeks, independent of its mei'its, to maintain the final decree dismissing the bill upon its. merits-on account of matters in connection with the supplemental bill. It is objected that it was filed ex parte and without notice. After general demurrer, plea and answer in support thereof, and hearing upon the merits and. final decree, the want of notice if necessary in such case is waived.

It is also urged that by this bill new matters occurring since the filing of the original bill constituting a new case are sought to be brought forward by way of supplement; that the case made by the hill, if any case is made, is the subject-matter of an original suit in equity. If any such objection as this was made at any time in the Circuit Court the record does not disclose it. The first pleading in response to this supplemental bill is a general demurrer for want of equity. This being overruled, there was a plea and answer in support thereof and after testimony a final hearing.

This objection, even if it be a good one, must, under these circumstances, be regarded as waived. There was here a general demurrer for want of equity. No such ground as that the matter of the supplemental. bill is the subject of original rather than supplemental proceedings was set up in the demurrer. In the case of Pinch vs. Anthony, et al., 10 Allen, 477, it appeared “ that at the time of filing the original bill the plaintiff had no cause of action.

The plaintiff afterwards filed a supplemental bill .setting forth certain facts that had occurred during the pendency of the suit.” It was objected that the facts set forth in the supplemental bill could not be considered in that suit, but that the bill should be dismissed and the plaintiff be left to bring a new suit, if he has good cause of action.

Say the court: “We have found no authority that goes so far as to authorize a party who has no cause of action at the time of filing his original bill to file a supplemental bill in order to maintain his suit upon a cause of action that accrued after the original bill was filed, even though it arose out of the same transaction that was the subject of the original bill. It would seem to be contrary to principle to allow-this to be done. Milner vs. Milner, 2 Edw. Chy., 114, is an authority against allowing a new cause of action to be stated in a supplemental bill.

But the plaintiff may, by means of a supplemental bill, introduce into his case facts that have occurred since the original bill was filed. The extent to which this may be done is not definitely settled. But if he goes too far in this respect the defendant has opportunity to object to it when leave is asked to file the supplemental bill, (Pedrick vs. White, 1 Met., 76,) or by demurrer to the bill for that cause after it is filed. In this case the defendant did demur, but did not present this as a ground of demurrer. 8 Allen, 536.

The cause was sent to a master, and was recommitted to him by consent of both parties for the purpose of being fully heard upon its merits, and it has been so heard and his report embraces every matter that would have been modified if a new bill had been filed. The objection to the supplemental bill ought therefore to be regarded as waived. Pingree vs. Coffin, 12 Gray, 288, 333; Story’s Eq. Pldg., §528, and note; Underhill vs. Van Cortlandt, 2 John. Chy., 369.” See also 2 Dan’l Chy. Pldg. & Prac., Cooper’s Ed., 1,524, and note.

In the ease now before this court the objection was not taken by demurrer, and there was testimony taken after plea and answer in support thereof. Whether this objection was urged at the hearing in the Circuit Court we know not. The transcript of the record is silent as to the matter. But even if it was the objection, according to the principle of the case in the 10th of Allen and the cases cited above, should have been disregarded.

It is unnecessary to enter into a discussion here to show that such objections as these, not necessary to the determination of the merits of a controversy, should be made before the hearing when quite all of the expenses of the litigation have been incurred. As remarked by Chancellor Kent in Underhill vs. Van Cortlandt, 2 John.

Chy., 369: “It would be an abuse of justice if the defendant was to be permitted to protract a litigation to this extent, and with the expense that has attended this suit, and then, at the final hearing, interpose with this preliminary objection.” This disposes of the matter presented by the respondent as the ground upon which the decree should be sustained. The appellant asks a reversal upon the ground that the hearing being had upon the plea it was error for the court to dismiss the bill; that the decree should have been interlocutory, permitting him to take issue upon it.

This is not the ease made by this record. The notice was for a hearing upon the plea to be had on one day and for a final hearing and determination of said cause on the next day. The final hearing was had long after the time fixed for either hearing, and the decree of the court was, that upon the law and merits of the case the plea of the defendant be sustained and the bill dismissed. This is a decree not simply upon the face of the plea accepting • its allegations as true.

The case was before the court upon plea, answer in support thereof, replication in form to answer and testimony, and the court considered the case not solely with reference to the sufficiency of the plea upon its face, but with reference to the testimony taken, which was entirely applicable to the allegations of the bill, to the averments of the plea and the answer in support of it. In addition to this it is not a matter of course to direct an issue upon a plea being sustained. In this case the plea and answer in support thereof went to the whole bill.

The bill asked for a decree for a specific sum as due upon an alleged mutual settlement of partnership accounts, or for a decree for a reference to settle the partnership account.

The plea and answer in support thereof set up an alleged antecedent settlement, the answer as well as the plea denying any subsequent modification of the settlement, or that any sum was due plaintiff on any account. “ Where a plea to the whole or pai’t of a bill is allowed upon argument, the plaintiff, unless he, undertakes to reply to the plea, or the court otherwise directs, is to pay to the party by whom the plea is filed the costs of the plea, and if the plea is to the whole bill the costs of the suit also, and in such last-mentioned case the order allowing the plea is to direct the dismissal of the bill.” Dan'l Chy.

Pldg. & Prac., 698.

The plaintiff here in no manner undertook to reply to the plea, and it was proper that the order allowing the plea should dismiss the bill, as the plaintiff .in no way suggested a desire to reply to it and go into proofs, but on the contrary gave notice that he would on the next day after the hearing of the plea ask the Judge to proceed to a final hearing, avering that the case was “ now ready ” (meaning at the time the notice of hearing upon the plea and for final hearing was given,) “for final determination.” Under Rules 52 and 55 of the Rules governing Courts of Equity, this plea should have been replied to b'y plaintiff or set down for argument by the rule day next succeeding the rule day on which it was filed, and if allowed upon the hearing the defendant would have been entitled to his costs, and unless leave to file replication to plea was asked for or the court otherwise ordered* the decree was final.

The rule where the plea is allowed and the plaintiff fails to reply as stated by Barbour, (1 Barb. Chy. Prac., 121,) is that “ not only the validity of the plea as a bar is admitted, but the truth of the facts set up in it; and of course the suit is at an end.” The court may, without such.application, direct upon a hearing that the benefit of the plea shall be saved to the defendant at the hearing. Here there was a hearing upon the plea as well as upon the facts disclosed at the final hearing, and that is to the plaintiff the most favorable method in which a plea can be considered. 3 Paige, 572; 1 Barb. Chy.

Prac., 121, 122. It is thus apparent that in the view in which this case has been discussed by the defendant and respondent, we can see no ground for a dismissal of the bill, which order he seeks to sustain, nor do we agree with the legal propositions upon which the appellant and plaintiff seeks to reverse the decree. "We will state our own view of the ease as it was presented to the Cix’cuit. Court. This is a case of a plea and answer in support thei’eof.

The supplemental bill sets up axx agreement, which it alleges provided for and agx’eed upon the terms of a settlement which it alleges was eai’ried out by subsequent agreement, under which subsequent agreement plaixxtiff claimed a sum was due him. The plea "set up the first agreement as a final settlement, and the answer in support thereof denies any subsequent settlement as alleged, or that any sum was due. Our general views in reference to such a pleading are given in the case of Hart Ex. vs.

Sanderson’s Administrators, 16 Fla., 264-268. “ In such cases the plea and answer 'form but one defence, and the title of such pleading is properly the ‘ plea and answer,’ or ‘ the joint plea and answer,’ or ‘ the joint and several plea and answer,’ and the only proper title to a replication in such case is a replication to ‘ the' plea and answer.’” 1 Barb. Chy. Prac., 174. Upon argument of such a plea, if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled and ordered to stand for an answer only. 1 Barb. Chy. Prac., 120; Mit. Eq.

Pldg., 304; 3 Atk., 304; Welford’s Eq., 394. For a form of such plea and answer see 2 Newland’s Chy., 127. Where there is such plea and answer the replication must be to the plea and auswer. Welford’s Eq., 214; Kirby vs. Buston, 5 Mad., 378; 1 Sim. & Stu., 135; 10 Sim., 285. A replication to the answer alone is not admissible because the plea and the answer are one pleading mutually dependent upon each other.

Here it is true the replication is restricted by its terms to the answer, but after treatment of the case by the court and by the parties in taking testimony applicable as well to the averments of the plea as to the answer, and going into a hearing upon the merits in the same manner as if a propei’ly framed replication had been filed, we know of no rule which would justify an appellate tribunal in reversing a decree in order to give the plaintiff the.opportunity to reopen the case to take additional testimony, which opportunity has been given him, and of which so far as this record discloses he has fully availed himself.

The practice in the English and American courts is after witnesses have been examined to allow the replication to be filed nunc pro tunc. Mit. Chy., §523; Welford’s Chy., §400; 1 Woods, 667; 1 Bibb, 277; 3 Blackf., 115; 12 Gill. & John., 271; 1 Ired. Chy., 117; 3 John. Chy., 363; 1 Bibb, 338. In a case at law in the Supreme Court of the United States it was held that the fact that no replication was put in to two or three special pleas raising distinct defences is.not a matter for reversal, the case having been tried below as if the pleadings had been perfect and in form. 7 Wall., 565.

Certainly in a' case in equity where there is only one plea and an answer in support thereof, to which all the testimony must necessarily be applicable, the mere omission to file a proper replication cannot be available upon appeal. In this case to reverse the decree for this reason would be to give the plaintiff an advantage on account of his own want of accuracy in framing his replication after he has had all the advantage it would have given him if correct.

We think, therefore, that in our treatment of the case we must regard any such irregularity as waived by the plaintiff treating the issues as properly made up. This brings us to the consideration of the case as it appears upon the pleadings and the testimony. We do not propose to discuss the facts at length. After a bill to settle the partnership matter, a reference to a master and his report, these parties being each dissatisfied with the report as a final settlement of their differences, by their attorneys upon conference executed the following paper.

After stating the case the paper proceeds: “ The master’s report in this case having been filed and exceptions thereto withdrawn, it is agreed between the parties to said cause that the same' be dismissed and that each party pay his own costs, except the master’s fee of fifty dollars, which having been paid by J. R. Crump, it is agreed that William Perkins shall refund to said Crump twenty-five dollars.

It is further agreéd that the accounts and notes having been assorted into three classes; namely, good, bad and doubtful; it is agreéd that the attorneys in said case shall proceed as early as practicable to divide said accounts equally between said parties, dividing to each party an equal amount of each class of said accounts and notes, and that upon said division said attorneys will execute their respective receipts to the respective parties for the notes and accounts divided to each, and that said accounts and notes remain in the hands of said attorneys respectively for collection or otherwise as either of the said parties may direct in reference to his own divided share of said notes, and that this be considered and' is hereby declared to be a final settlement of all demands between said parties growing out of said suit. “Bolling Baker, “Attorney for J.

R. Crump. “ R. B. Hilton, “Attorney for William Perkins.” After executing this paper, at a subsequent day, Crump, William Perkins, who could neither read nor write, and John H.‘ Perkins, his son, met at the office of Bolling Baker, Esq., for the purpose of dividing the notes as above agreed upon, the counsel of William Perkins being absent from the State, Crump’s counsel, who seemed to have determined and stated the account, swears that he stated a general result of the account at that time, which, though not reduced to writing then, was subsequently reduced to writing by him.

He states that he has no recollection of either of the parties agreeing in any exact words that they,, or either of them, would be bound by such statements, but heard nothing to the contrary. This agreement was not then signed, this witness stating that both parties insisted upon leaving as soon as the result of the various calculations were arrived at, and that he thinks the}' left before statement “ B ” was drawn up in its present form. Statement “ B ” is as follows: Statement of Final Settlement of Accounts between J. R. Crump and W. Perkins of the Firm of Simpson Perkins.

Amount of good notes in hands of Messrs. Hilton, Walker & Baker, viz : Note of James Conner and interest.......................... $2,407.78 Note of D. Gardner....................................... 382.42 Note of J. B. Crump, administrator of Simpson............. 108.07 $2,892.30 To amount cash collected by W. Perkins on notes and accounts ........................................$3,685.66 By amount debts paid...........'..............\ 2,208.30— 1,477.36 Total notes and cash good................................ $4,369.66 Of which Mr. Crump is entitled to receive from Mr.

Perkins in cash..................................... $738.68 And in notes in Attorney’s hands................ 1,446.15— 2,184.83 Of which Mr. Perkins is entitled to retain in cash. $738.68 And to receive in notes......................... 1,44615— 2,184.83 $4,369.66 The $738.68 cash due Mr. Crump should bear interest from March 4,1867, until paid; thus, cash, $738.68 ; interest at 8 per cent, to settlement. John H.

Perkins testifies that he was present at the date of this last alleged settlement; that Bolling Baker was to make it in conformity with the .antecedent agreement for final settlement; that the-papers were examined and classified ; that a note signed by Conner & Carr they considered of sufficient value to divide by making two notes, and that the remainder of the papers were left in the hands of Bolling Baker for collection, and all the proceeds of said collections were to be equally divided; that Mr. Perkins paid $25, one-half of the fee of the'master, and this was considered a final settlement. J. B.

Conner, who was present at this interview and settlement, says a note held by them against him was divided, and that he knew of no agreement between them at that time, except that there was to be made on that day a division, of all the notes and accounts, which he supposed was a full and -complete settlement. Without entering into any .argument as to the effect, of this testimony, we simply state our conclusion to be that everything done by plaintiff’s counsel on this occasion, authorized by the defendant, was the classification and division of the notes and accounts.

The plaintiff’s counsel was not given authority either at that or any other time to make himself the master in this 'ease to state an account between the parties according to his views from the books. He was upon this occasion to classify the notes and accounts. This division he states he made, that both parties declined to take any of- the accounts then before them; that both agreed they were all hopeless, and that they would be left with him, and if either Crump or Perkins could collect anything from them or use them in any/way, each would account to the other for his share of the amount so realized.

He states that he has never collected any of them, nor heard that Crump or Perkins ever did. This was the- execution of the agreement made by the parties. The subsequent statement “ B ” made in the absence of, and not consented to, did not represent any division of the notes-and accounts by Perkins & Crump, as they had agreed upon, but was the counsel’s view as to what constituted a division of the “ assets,” which, was his construction of the agreement, while no agreement to divide the “ assets ” was ever made, but a definite agreement. to divide the notes and accounts after classification as to value.

The agreement that Perkins, as a matter of final settlement, should pay as a debt due Crump twenty-five dollars, and the agreement, as admitted by Baker, that the accounts as collected were to be divided between them, -is not consistent with the idea that Perkins upon this settlement was understood to be the debtor of Crump to the amount of over seven hundred dollars.

Again, Baker’s evidence shows that the accounts and notes to be divided were in a package before that time made out by the master, and that “ the individual accounts of the partners were not drawn off, nor were they in the packages, so far as I remember, with the other assets.” The decree is affirmed. A petition for a rehearing was filed. Mr. Justice Westcott delivered the following opinion thereon: This case, as we understand it after careful examination, is stated and decided in the opinion heretofore delivered. After examination of this petition we find no sufficient reason to grant a rehearing.

It is therefore denied.