Rebecca L. Myrick, Appellant, vs. Alexander Merritt, Appellee, 22 Fla. 335

Mr. Justice Raney delivered the opinion of the court: I. A demurrer to a plea reaches back to any essential defect in the declaration, or the count thereof, to which the plea has been tendered. Johnson vs. P. & P. R. Co., 16 Fla., 623 ; Wade vs. Doyle, 17 Fla., 522 ; Price vs. Drew, 18 Fla., 670; Stokes vs. Barrs, Ibid, 656. The defect in the plea in Russ vs. Mitchell, 11 Fla., 80, was one of mere form. II. Before passing upon the sufficiency of the second count in the declaration, which the appellant contends is defective in substance, it is necessary to consider the nature of the instrument she is sued upon.

Hendrix & Jones drew on July 9, 1883, a request or order upon her to pay the appellee “five hundred and seventy dollars, balance due on the house we are now building for you.” Her acceptance; whether drawn by lawyer or layman, is very guardedly constructed and is in the following language: “ I accept the above when the house is finished according to contract and delivered. To pay said sum by the first of January, 1885, interest to commence when said building is delivered,” and is signed by her.

It is a conditional acceptance, and no liability was to arise upon it until the house should be finished according to the contract, whatever it may be, and delivered. The purpose of that second sentence of the acceptance was to fix both the time of payment and the time when interest should begin to run. The first sentence shows when her liability to the appellee upon the instrument was to arise. It is “ when the house is finished according to the contract and delivered.” Hot until it has been both “ finished according to the contract,” and also “ delivered,” can a recovery be had against her on her acceptance.

We cannot change its terms ; its meaning is plain. The burden is upon the plaintiff to show that the conditions have been performed,, and until he does this he cannot recover. Daniel on Reg. Ins., §508 ; Leggett vs. Weed, 7 Kan., 273; Owen vs. Lane, 14 Ark., 389; Crowell vs. Plant, 53 Mo., 145 ; 50 Mo., 425. The second count of the declaration does not allege that the house was finished according to the contract, and it is consequently fatally defective.

Such an acceptance, though absolute in effect after there has been a performance of the conditions, should be set out as conditional with an averment of performance. Daniel on Reg. Ins , §508. An allegation of the delivery of the house and that the defendant has been in possession is not tantamount to an averment of the completion called for by the terms of the acceptance.

The allegation that the plaintiff gave defendant notice that he held himself ready to complete the house according to contract, or to pay'her a reasonable sum for his failure if she would point out to him the deficiencies or omissions, and that she refused to do so, and also refused to permit, plaintiff to enter the house for the purpose of completing it. according to contract, are likewise, if taken either with or independent of the preceding averment of the defendant’s claim that the house has not been completed according to contract and delivered, not equivalent to an allegation of performance.

We have not been shown nor, though our efforts have been diligent, have we been able to find any authority to the effect that the appellee can by virtue of his rights as holder of this acceptance and without the consent of the appellant put himself in the place of the contractors, Hendrix & Jones, and complete the contract. The assumption in argument, or in the pleadings of any such right and an offer to complete the house, is an admission that the condition embodied in the acceptance has not been performed, and that there is no right of action upon such paper.

If he has such right of substitution and there has been an offer by him to perform, and a refusal or prevention by her, then his right of action is one for which a special action on the case for damages occasioned the plaintiff by her refusal and prevention of such performance by him, is the remedy. The action here is assumpsit and the second count is for the recovery of the amount of the acceptance with interest. In Newhall vs.

Clark, 3 Cush., 376, it was held that the acceptance of an order for the payment of money out of the amount to be advanced to the drawer when the house he was then erecting on the drawee’s land should be so far completed as to have the plastering done according to the contract between the parties, was not absolute but conditional, and the acceptor’s liability thereon is dependent on the contingency of the work being completed to a certain stage. “We do not mean,” says Shaw, C.

J., “ to say that when a party has obtained such an order and acceptance, nothing short of an absolute performance of the contract on the part of the contractor and drawer will give the payee any remedy against the acceptor. The holder of such an order is a holder for value and has an interest in the contract and its execution as raising the fund to which he has a right to look for his pay.

If, therefore, after the acceptance of such an order, the acceptor without justifiable cause should prohibit the drawer and contractor from proceeding to such a completion of the contract as will make the acceptance payable, or if he should collude with the drawer of the order, to put an end to the contract, when, but for such fraudulent interference, the drawer would be able and ready to go on and complete it, we are not prepared to say that the holder of the order would not have a remedy by a special action, setting out such wrongful act of the acceptor and the loss sustained by the holder by the means thereof.

The sum thus to be recovered would not be the debt due by force of the contract, but damages for the wrongful act of the acceptor in preventing the completion of the contract by means of which the holder has sustained the loss of the debt.

In such an action the burden of proof would be on the plaintiff to show that the prevention of the completion of the contract had been caused by the defendant to avoid the order, and any evidence on the part of the acceptor to show that the drawer had failed, or been unable to perform his contract by reason of death, sickness, insolvency or other inability, would be competent to rebut the charge upon which such action would be grounded.” The Massachusetts court did not decide upon the liability of the acceptor in the above case, but sent the case back for a new trial.

The case does not moreover involve the question of the right of the payee or holder of the acceptance to perform the work of the contractor who drew the draft or order. We are of the the opinion that the second count of the declaration is not sufficient, and that the demurrer to the pleas plead to it, reaches it, and so hold. This makes it unnecessary to say anything as to any of the pleas to such count as they all fall with it. III. Counsel for appellant contends that the Circuit-Court should have disposed of the demurrer to the “ long plea” filed May 26th, 1885, before submitting the case to the jury.

This plea was demurred to by the plaintiff two days after it was filed, and subsequently on the 4th day of June, he joined issue on the plea. The statute, sec. 34, chap. 1096, provides that where there is both a demurrer and plea to the same pleading, it shall be in the discretion of the court which issue shall be first disposed of. Wade vs. Doyle, 18 Fla., 631, 632. The plea was to the second count, and has been practically disposed of above.

Assuming, however, that the discretion as to which issue, the one of law or that of fact, shall be first disposed of under the above section, can be controlled by the appellate court, there is nothing to show any abuse of discretion; and there would be no ground for a review of the discretion, if this was now a question material to the case before us. Ko application appears to have been made by appellant to have the issue of law disposed of first, nor do we see that he has any ground to complain that the issue which treated his plea as good in law was disposed of first.

We are not satified that the plaintiff did not intend by subsequently joining issue and going to trial to waive his demurrer. There is nothing to show a contrary intent. Neither party appears to have asked for action on the demurrer before final final judgment, nor at all. There was no error in disposing of the issue of fact first. IV. The third, fourth and fifth assignments of error relate to the exclusion and introduction of evidence. Their consideration here is dependent upon the general bill of exceptions.

This having been struck from the record on motion of the appellee, they cannot be considered, There is no special bill of exceptions, made up and signed by the judge on the trial, covering them. The same reason excludes a consideration of the, sixth assisgnment, covering an exception to the following charge of the judge: “ If you believe from the evidence that the plaintiff offered to complete the house according to the contract, and that the defendant refused to let him do it, then plaintiff stands on his rights as if the house had been completed, and is entitled to recover on the acceptance of defendant.” V.

When an exception has been taken upon the trial to the refusal of the judge to give instructions asked, and the instructions so refused have been then and there written out and endorsed by him as refused, and the exceptions noted and he signs it and it is filed, we think this paper constitutes of itself a special bill of exceptions as to such instructions; and though where it has been incorporated in this shape into the general bill of exceptions, and such general bill has been subsequently struck from the record by this court because it was not settled within the time allowed by an order made for that purpose, we do not think the order striking the general bill should be held to carry with it the special bill.

Upon this theory it is contended that we can consider the refusal of the Circuit Judge to give the following charges asked by the defendant : “ 2. Before the plaintiff can recover in this case you must be satisfied from the evidence that Hendrix & Jones, or the plaintiff, within a reasonable time after the acceptance of said draft, did finish the house Hendrix & Jones were building for defendant, according to the contract, and delivered it to defendant.

What is a reasonable time in which said house should have been finished, you will determine from the evidence as to the house that was contracted to be built by Hendrix & Jones.” “ 3. If from the evidence you believe that neither Hendrix & Jones, nor A.

Merritt, the plaintiff, did finish the house according to contract and deliver the same to defendant within a reasonable time after defendant’s acceptance was made, the defendant had a right to refuse to let either Hendrix & Jones or plaintiff complete the house.” The alleged special bill of exceptions shows that the judge charged the jury at defendant’s request as follows: “ 1. The draft is for balance due on house Hendrix & Jones were building for the defendant. The acceptance of the draft or order is conditional.

It is to be paid when the house is finished according to contract and delivered to defendant.” Though not entirely satisfied that the paper covering the action as to these instructions is properly a special bill of exceptions, still without committing ourselves on this question of practice by our action now, we will consider it as such. In so far as the first charge refused, which is numbered two, is concerned, we are unable in the absence of the testimony as to what the terms and effect of contract between Mrs. Myrick and Hendrix & Jones were, to say that the Circuit. Judge erred.

It may be. that such contract specified the time, or that there was something in it or in the general character of the evidence, which made such a charge, in so far as the feature as to reasonable time is involved, wholly improper. The same observations apply to the other instruction which the judge refused. It may have been that the contract and the testimony rendered this charge wholly inapplicable to the case made before the jury. Blige vs. State, 20 Fla., 742; Bailey vs. Clark, 6 Fla., 516 ; Burk vs. Clark, 8 Fla., 91; Tompkins vs. Eason, 8 Fla., 14; Worthington vs. Mason, 101 U. S., 149. VI.

In the absence of all testimony from the record, and in view of the fact that there is one good count in the declaration—the first count—if not others, we are bound in pursuance of the practice of this court to affirm the judgment. The rule is that where there is one good count in the declaration and the record contains no bill of exceptions incorporating the evidence adduced on the trial, the legal presumption is that it was sufficient to sustain the judgment under that count. The appellate court will presume that everything necessary to sustain the verdict was proved, unless the contrary affirmatively appears.

Miller & Criglar vs. Kingsbury, 8 Fla., 356 ; Dorman vs. Bigelow, 1 Fla., 281, 297. The judgment will therefore be affirmed with costs.