Davis Clary, Plaintiff in Error v. J. M. Isom, Defendant in Error, 56 Fla. 236

Taylor, J. The defendant in error as plaintiff below sued the plaintiff in error as defendant below in. assump7 sit upon a promissory note in the Circuit Court of Walton County. The trial resulted in a verdict and judgment in favor of the plaintiff and for review of this the defendant comes here by writ of error. To the declaration the defendant interposed a plea alleging failure of consideration for the note sued on. The plaintiff demurred to this plea which demurrer was sustained by the court, and this ruling is assigned as error.

Immediately upon the sustaining of this demurrer the defendant again filed another plea alleging failure of consideration for the note sued on, only making it more full, and upon the latter plea and replication thereto the cause -was tried. Even if the first plea was not subject to the demurrer thereto sustained by. the court, no harm resulted to the defendant, since he had at the trial the full benefit of the same plea more fully stated. The following questions were propounded by the defendant to the plaintiff on cross-examination as a witness for”himself. “Wasn’t he (meaning one J. J.

Blount) to build the mill, buy the engine, and build two miles of road?” “Did you know under the contract what Blount was to do ?” “Did you not tell Clary you could not carry out the contract after you purchased from Blount?” “Did you know that the mill was to be placed in the middle of the timber and a railroad, or tram road was to be built by Blount?” To all of which questions the plaintiff objected, the objections were sustained, and these rulings are assigned as error. There was no error here. The defendant and the J. J.

Blount inquired about had been in some kind of copartnership in the sawmill business prior to any connection of the plaintiff with the defendant. The plaintiff bought Blount out and the latter moved away. Blount prior to his sale to the plaintiff had bought from Avery & Co. of Atlanta, Ga., a steam' engine, boilers, sawmill and its appliances and given his notes for deferred payments aggregating $1,200 for the purchase price thereof, Avery & Co. retaining' title to' the engine and other machinery until said deferred payments were made.

When the plaintiff bought Blount out he paid him a certain amount in rash and assumed the payment to' Avery & Co. of these deferred notes given for the purchase of said machinery. Then the defendant bought out the plaintiff giving him the note sued on for the purchase of his entire interest. The plaintiff claimed that the defendant, besides giving him the note sued on, also- assumed the payment of the notes given by Blount to Avery & Co. for the machinery.

The defendant denied this and claimed that he knew nothing of the amount or of any amount due Avery % Co. on the mill and machinery, and that he gave the note sued on thnking the plaintiff had full title to the machinery and mill, and that said note given by him to- the plaintiff was all that he had to pay. this was the real issue between the parties, and we fail to see what relevancy to such issue there was in any former existing contract between Blount and the defendant as to building of tramways, furnishing engines, &c. The defendant also offered in evidence the original notes made by J. J.

Blount to- Avery & Co. for the engine, sawmill and other machinery, but on objection they were excluded by the court and this ruling is assigned as error. There was no error here. These notes, it appeared at the trial, had been sued upon and had been converted into judgment and the defendant had paid such judgment in full.

If the contention of the defendant was correct that he did not know of this- purchase money claim due Avery & Co. for the mill, engine, &c., at the time he bought same from plaintiff, but understood that he was purchasing same for the plaintiff, free of encumbrances, he had the full benefit of all proof tending to establish his contention, and there was no dispute as to the fact that said notes were outstanding and that he, the defendant, had paid the judgment to which they'had been reduced.

The sole issue was whether he, the defendant, knew of their existence when he gave the note sued on to the plaintiff and whether he then assumed their payment. The proffered introduction of the original notes in evidence did not tend to establish or disestablish this issue between the parties. The following excerpt from the charge of the court is assigned as error. “The court charges you that you cannot apportion the verdict in this case, you must find either for the plaintiff or defendant. The suit is upon a note.” There was no error here.

The suit was upon a note for a fixed sum and the defense was a total failure of consideration. There could, therefore, be but one finding either outright for the plaintiff, or for the defendant as the charge directed.

The following excerpt from' the court’s charge to the jury is also assigned as error: “But if you should find from a preponderance of the testimony that the machinery was only a part of the consideration moving from the plaintiff to the defendant for the note, and that there was other valuable consideration for same moving from the plaintiff to the defendant, such as a contract, if there was any, in relation to the right to cut timber, or any good will, if any, connected with the mill and,the right to operate it, any improvements, if any, that had been made in connection with putting up the mill, that were valuable and transferred as part of the consideration for the note from the plaintiff to the defendant, then, even though the lien existed, and even though the defendant had no knowledge of it, there would be no such failure of consideration as would defeat the plaintiff’s right to recover on this note.” We fail to discovér any error in this excerpt from the charge when taken in connection with the rest of the charge of which it formed a part.

The defendant requested a charge to be given by the court, but the requested charge was refused, and such refusal is assigned as error. There was no error here. The court had already given the same charge fully in substance and there was no error in the refusal to reiterate it. The denial of the defendant’s motion for new trial is assigned as error. The only ground of the motion not already disposed of in discussing the other assignments of error, is that the verdict is contrary to the evidence, and is not supported thereby.

We have carefully considered the evidence in the case and find that it amply sustains the verdict rendered. Finding no error the judgment of the Circuit Court in said cause is -hereby affirmed at the cost of the plaintiff in error. Hocker and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the -opinion.