Miller & Criglar, Appellants, vs. John Kingsbury, Appellee, 8 Fla. 356

DuPONT, J., delivered the opinion of the Coart. This was an action of assumpsit brought by the appellee against the appellants upon a written agreement, which contained a promise to pay a certain sum of money in lumber, to be delivered at a certain place and to be valued by certain persons therein named, according to a bill to be furnished by the payee. The declaration contained a special count on the agreement, and very improperly designated it a “ promissory note.” The usual money counts were also embraced in the declaration.

Seven pleas were interposed by the defendants below, all of which were replied to except the last, to which there was a demurrer. The demurrer to this plea was sustained, and thereupon the defendants voluntarily withdrew a 11 of the other pleas and suffered a judgment to be taken by nil dieit. To reverse this judgment the cause is brought to this Court.

The only exception contained in the general assignment of errors that we deem necessary to be considered is in the following words: “ That the declaration being defective as well as the plea, the Court should have given judgment for the defendants.” It is a well settled rule of practice, both in the English and American Courts, that, on demurrer, the Court will consider the whole record and give judgment for the party who on the whole appears to be entitled to it.

Thus, on demurrer to the replication, if the Court thinks the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but the plaintiff, provided the declaration be good; but if the declaration also be bad in substance, then, upon the same principle, judgment would be given for the defendant. — ■ Ste. on Plea., 162. Thus, too, if there be a demurrer to the plea, it will reach back to the declaration, and, if that be bad, the judgment will be for the defendant.

This doctrine was enunciated and acted upon by this Court in the well considered case of Parkhill’s adm’rs vs. the Union Bank of Florida, (1 Flo.

Reps., 110.) In the opinion delivered in that case, the Court say: “ If the pleading be bad, judgment shall be had against him who made the first default; and it matters not whether the issue be of law or fact, whether the cause has proceeded to issue or not, the Court is always bound to examine the whole record and adjudge for the plaintiff or defendant according to the legal right as it on the whole appears.” Looking into this record, we perceive that the special count of the declaration is manifestly faulty and wholly insufficient to sustain the judgment of the Court below.

It only remains, then, to consider whether there is enough in the record, independent of the special count, to save the judgment. It will be noted in this connection, that, in addition to the count upon the special agreement, the declaration contains all of the usual money counts.

These latter counts seem to be unobjectionable, and as the record contains no bill of exceptions incorporating the evidence adduced at the trial, the legal presumption is that it was sufficient to sustain the judgment upon these counts. “ The appellate Court will intend that everything necessary to sustain the verdict was proved unless the omission wás taken advantage of by exception in the Court below. 11 Barb. S. C. Reps., 205. The same doctrine has been repeatedly enunciated by this Court and is strictly applicable to the case now undei consideration. — Dorman vs. executors of Richard, 1 Flo. Reps., 281.

Our statute would also seem to support this view of the law. It says, that “no judgment after verdict of a jury or an award of arbitrators shall be stayed or reversed for any defect or fault in the original writ, or for a variance between the writ and declaration, or for any mispleading, insufficient pleading or misjoining of the issue, or for any faulty count in a declaration where the same declaration contains one count or more.which is or are good, or for any informality in entering up the judgment by the Clerk, &e., &c. — Thomp. Dig., 351.

Notwithstanding the very great defects in the special count, we are nevertheless constrained, by the position which the case is made to assume before us, to sustain the judgment under the common counts. The judgment will therefore be affirmed with costs.