J. W. Braxton, Appellant, v. C. C. Liddon and Thos. B. Liddon, Co-partners as C. C. Liddon & Co., Appellees, 55 Fla. 785

Whitfield, J. —On a former appeal it was held that in this proceeding in equity to foreclose a lifen upon crops for fertilizers, the answer setting up a failure of the consideration for the lien obligation put the burden of proving the consideration upon the complainant; and as the hearing was on bill, answer and replication after the time for taking testimony had expired and no testimony was taken, the decree of foreclosure was reversed. Braxton v. Liddon, & Co., 49 Fla. 280, 38 South. Rep. 717. After the cause was remanded, testimony was taken and a decree of foreclosure rendered, from which the defendant J. W.

Braxton took, an appeal, and assigns as errors: (1) an order extending the time for taking testimony; (2) an, order overruling a motion to- strike the depositions of certain named witnesses; (3) “the master erred in the 'report which Ire made to the court filed April. 4th, 1907”; (4) overruling exceptions to the master’s report and in entering final decree for the complainant. Upon the reversal of the decree on the former appeal the cause was remanded for such proceedings as may be in accordance with equity.

The taking of testimony in a proper manner is a proceeding in accordance w-ith equity, and was of course contemplated upon remanding the cause. Equity Rulé 71 provides that “three' months, and no more, shall be allowed for the taking of testimony, after the cause is at issue, unless the judge shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence -at the hearing.” The three months allowed by the rute for talcing testimony after the cause was at issue, had expired when the cause was remanded from this court.

Orders enlarging the time for taking testimony in equity causes are within the sound discretion of the judge, when special cause is -shown; and unless abuse of such discretion appears the appellate court will not interfere. On this record it -cannot be said that the judge abused a sound discretion in enlarging the time for taking testimony. Tuten v. Gazan, 18 Fla. 751; Long v. Anderson, 48 Fla. 279, 37 South. Rep. 216; Lykes v. Beauchamp, 49 Fla. 333, 38 South. Rep. 603. No order overruling a motion to strike out depositions appears in the record, so the second assignment of error is of -no -avail.

The appellate court reviews the- -action of the court on the report of a master in equity causes, and not the action of the master per se, therefore ’the third assignment of error that “the master erred in the report which he made to the court, filed April 4th, 1907,” cannot be considered.

It is contended under the fourth -assignment of error that the court erred in overruling exceptions t-o the master’s report and in rendering the -decree for the complainant, because the proofs show the fertilizer did not have a good effect on the crops. ■ The answer was not excepted to and the court did not pass on the propriety of all its averments.

Even though the answer contains • immaterial matter, it does aver that the fertilizer was “wholly worthless” and “fell short of and did not compare with the guaranteed analysis as represented upon the tags which were placed upon sacks of such fertilizer,” and that defendant ‘by his agreement did not “intend to consent that he knew the fertilizer had been analyzed, for he did not know as a matter of fact whether it had been analyzed or not,” and that the fertilizer “was an injury to his said crop” and “damaged the productions of his land,” and that “such damage to defendant’s crop was the direct result of using said fertilizer,” wherefore the consideration for the lien “wholly failed.” It was held on the former appeal “that the first and second paragraphs of the answer taken with the fifth, set up good defenses to this suit, if they shall be found to be true.” j If the fertilizer did not compare with the guaranteed analysis as averred in the answer, there was a good defense.

The damage to the crops and land as averred may have been consequences of the deficiency in the fertilizer as compared with the guaranteed analysis and such deficiency may have rendered the fertilizer “wholly worthless,” causing a failure of consideration.

The court confirmed the finding of the master “that the fertilizer was up to the guaranteed anafysis, though the crops are shown from a preponderance of the evidence not to have been good.” If the fertilizer did not substantially meet the requirements of the analysis placed on the sacks containing it in compliance with the statute, there was- a defense, even if the purchaser signed an agreement in writing containing the following: “and it is expressly covenanted and agreed that the vendors do not warrant the aforesaid fertilizers as to quality or its effects upon crops or otherwise, but that the same is bought on my judgment ■with all faults at my risk.

I admit that I have personally examined each and every package of said fertilizer, and that it has been duly analyzed and inspected and is labelled and tagged as required by law..” To the extent that this agreement seeks to relieve the vendor of liability for damage resulting from any afilure of the fertilizer to contain the ingredients stated in the analysis ■under -which it was sold, it will not be enforced,, because it is contrary to the policy of the statute designed to secure purchasers of fertilizers from- adulteration of deficiencies of the constituent elements, indicated by the analysis under which it is sold.

Braxton v. Liddon & Co., supra. The defense sought to be interposed by the answer that the fertilizer injured the. crops and land without reference to the failure to comply with the guaranteed analysis is not admissible since the agreement signed by the defendant expressly relieved the plaintiff of liability for the fertilizer as to “its effects upon crops or otherwise,” and as this part of the agreement to- the extent that it is not dependent upon the analysis, is not condemned by statute as above stated, it is binding on the defendant in the absence of fraud.

The court confirmed the findings of the master, including the one “that the fertilizer was up to the guaranteed analysis,” and this is not controverted. The master found “the crops are s'ho-wn from a preponderance of the evidence not to have been good,” and the evidence sustains the finding, but the decree is not for that reason erroneous.

The 'agreement signed by the defendant relieved the complainant of all liability for the effect of the fertilizer on the crops or otherwise; and the defendant cannot present that matter as a defense, if the damage was not the result of deficiencies with reference to the guaranteed analysis. The policy .of, the statute extends only to the analysis and .-the results attending a failure, to, comply with the guaranteed analysis.

As the finding that “.the ¡fertilizer was up to the guaranteed analysis1 ’ is sustained by the evidence, the only legal defense interposed fails. ■ , The attorney fee provided for in the agreement signed by the defendant was allowed in the decree, and it is shown by the evidence to be reasonable, therefore the defendant cannot here complain of it. The decree is affirmed. Shackleford, C. J., and Cockrell, J., concur; Taylor and Hocker, JJ., concur in -the opinion. Parkhill, J., did not take part.