John M. Reddick, Appellant, vs. Robert J. Mickler, Appellee, 23 Fla. 335

[The opinion in this case was delivered by Chief Justice Maxwell, as wei’e the opinions hez’einafter reported and attributed to the Chief Justice; those hez’einbefoz’e reported and so attributed, were delivered by Chief Justice MeWhoz'ter, who resigned July 1,1887, on which day Chief Justice Maxwell was commissioned and took his seat.— Reporter.] The Chiee-Justice delivered the opinion of the coui’t: Robert J. Mickler bi'ought suit against John M. Reddick on a promissozy note for $300 given by the latter to the former.

The defendant pleaded : 1st, That the note was given for part of the purchase money for certain lands which he describes, for which plaintiff gave him a deed, but that the consideration for the ■ note has failed because plaintiff has not put him in possession of said lands; 2d, That the plaintiff offers him a tract of land differently situated from that described in the deed, with different metes and bounds and of less area ; 3d, That the frontage of the lot sold by plaintiff to defendant and described in the deed, is considerably more than the frontage of that offered by plaintiff, and on account of the diminished frontage the lot offered is of far less value than that described 4th, That he has already paid plaintiff $300, which is asmuchas the lot offered is reasonably worth ; 5th, That the tract of land offered him is not the tract pointed out to him by plaintiff at the time of sale, but is a far less valuable tract.

These pleas were sworn to and the plaintiff;’ joined issue on them. . On the trial of the case the plaintiff put in evidence the-note and rested his case. The defendant demurred to the-evidence, but the court overruled the demurrer and gave judgment for the plaintiff, from which action of the court the defendant has brought this appeal. It seems that the case was tried upon the issues made as-if the pleas presented facts constituting a failure of consideration.

There is much vagueness and uncertainty in. the pleas and no light given as to the character of the covenants in the deed, if any, and whether the 'two tracts-of land are entirely different or the difference is only that the tract is smaller than the description of the deed calls for, does not appear with sufficient clearriess.

Further, the pleas, except the first, leave it uncertain whether they are designed to allege total or partial failure of consideration, .But if they are to be taken as pleas setting up failure of consideration because the defendant gets'less land than the deed gives him, does this under our law meet the demands of such a plea ? The law does not sustain that plea as a good one to an action on a promissory note given for the purchase of land, even if it be for failure of title. See Long vs.

Allen, 2 Fla., 409, citing 1 Greenleaf, p. 352 ; 2 "Wheat., p. 18, and adding on the authority of 2 Kent, 473, that “ if there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself.” by covenants, he has no remedy for his money even on a failure of title,” much less, it appears to us, would the plea be a good one in the ease where the- complaint is, that the land is of less area than. that described in the deed. See also Randall vs. Bourguardez, 23 Fla., and reported page 310, vol. 2, Southern Reporter.

It would follow from this that the plaintiff would be entitled to his judgment on the note notwithstanding the pleas, if they had been properly met, unless there is something more intended by them than is disclosed through their vague aud defective allegations. As the plaintiff did not demur he may have seen in them something not apparent to us. We think, therefore, that the defendant should have an opportunity to amend his pleas, if he can do so in a way to relieve his defence from the ban of the law to which we have referred.

If we regard the pleas as they were regarded in the court below, as being sufficient pleas of failure of consideration, the judgment given on the demurrer to evidence was erroneous. The demurrer should have been sustained. By our statutes the consideration of a note need not be proven unless a plea denying it be filed and sworn to. If such a plea is filed the onus of proving the consideration is on the plaintiff. McClellan’s Digest, pp. 832, 833 ; White vs. Camp., 1 Fla., 94; Prescott vs. Johnson, 8 Fla., 391.

The note itself, after the filing the pleas, was no evidence of the consideration, and plaintiff introduced no other evidence. It is plain that he failed to make a case against the defendant. It was decided by this court at the January term? 1887, in the case of the Hanover Fire Insurance Co. vs. B. C. Lewis & Sons, that in reversing a case where a demurrer to evidence in the court below was overruled, and it was apparent from the record that the plaintiff had not on the trial below disclosed his whole case, that this court would award a venirede novo.

The judgment of the Circuit Court is reversed, and the ease remanded for proceedings in accordance with this opinion.