WILLIAM D. GUNNING, PLAINTIFF IN ERROR,
v.
WILLIAM HERON, DEFENDANT IN ERROR
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In this contract dispute, the Florida Supreme Court addresses the proper pleading procedure for a payment defense and the effect of a defendant's receipt as evidence of settlement. The court holds that while a receipt is prima facie evidence of payment, the plaintiff should have replied to the defendant's payment plea before trial, and reverses the judgment to allow entry of judgment only for the undisputed amount of $92.43.
A plea of payment, even if inartificially drawn, is valid new matter to which the plaintiff should have replied before trial under Florida practice. A genuine receipt is prima facie evidence of settlement of the claim it covers. The court reverses and allows judgment to be entered only for the undisputed amount of $92.43 if the defendant files a remittitur within thirty days.
“a genuine receipt is prima facie evidence of the settlement of the claim covered by it”
Establishes the evidentiary weight of a receipt in a payment defense
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Join FLexlaw to unlock all legal intelligenceHeron sued Gunning on an open account (common counts). Gunning filed a third plea asserting payment of the entire claim except $92.43, supporting this…
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Raney, C. J.:
Heron lias sued Gunning, the declaration being in the common counts. The third plea is intended as one of payment to the entire cause of action, except the sum of $92.43, and though, at least, inartificially drawn in that it pleads the receipts or evidences of payment with the denial of the indebtedness, instead of the fact of payment, it cannot be regarded as frivolous. Though a receipt may be shown to have been given through mistake, or to be, for other reasons, of no effect as to the creditor or the claim he asserts, yet a genuine receipt is prima facie evidence of the settlement of the claim covered by it. This plea being evidently intended as one of payment, and consequently one of new matter, the plaintiff, if he proposed to treat it as issuable, should under the practice in this State, have replied to it before going to trial, as he did when he was in default in pleading and in the absence of the defendant, and as if he had joined issue on the pleas. Benbow vs. Marquis, 17 Fla., 441; McKinnon vs. McCollom, 6 Fla., 376; Livingston vs. L’Engle, 22 Fla., 427.
It is suggested in the brief of plaintiff in error that judgment may be entered in this court in favor of defendant in error for the sura of $92.43. If the plaintiff Heron desires he may, in view of the suggestion stated, enter a remittitur of the amount of the judgment over and above the sum of $92.43, within thirty days after the filing of the mandate in the clerk’s office of the Circuit Court of Orange county, and upon the same being so entered there the judgment of that court will stand for said sum of $92.43 and costs, as of the date of the entry of said judgment, to be enforced according to law, but in default of his filing said remittitur, the judgment and verdict will be held to be set aside, and the case will stand in that court for further proceedings consistent with this opinion and conformable to law.
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Citator
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Fla. E. Coast Ry. Co. v. Hayes, 67 Fla. 101 (Fla. 1914)…rn R. Co. v. Steen, 45 Fla. 313, 34 South. Rep. 571; Florida Cent. & P. R. Co. v. Seymour, 44 Fla. 557, 33 South. Rep. 424; Turner v. Adams, 39 Fla. 86, 21 South. Rep. 575; Arnau v. First Nat. Bank, 36 Fla. 395, 18 South. Rep. 790; Gunning v. Heron, 25 Fla. 846, [*110] 6 South. Rep. 855; Florida East Coast R. Co. v. Schumacher, 63 Fla. 137, 57 South. Rep. 603; Lewis v. Meginniss, 30 Fla. 419, 12 South. Rep. 19; Harrell v. Durrence, 9 Fla. 490; Atlantic Coast Line R. Co. v. Pitkin, 64 Fla. 24, 59 South. Rep…
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S. Fla. Farms Co. v. Stevenson, 84 Fla. 235 (Fla. 1922)…ize a remittitur of the excess as an alternative for a reversal. Pensacola Sanitarium v. Wilkins, 68 Fla. 447, 67 South. Rep. 124; Postal Telegraph Cable Co. v. Scott, 76 Fla. 336, 79 South. Rep. 767; McLean v. Spratt, 20 Fla. 515; Gunning v. Heron, 25 Fla. 846, 6 South. Rep. 855; Savannah, F. & W. Ry. Co. v. Davis, 25 Fla. 917, 7 South. Rep. 29; Florida Ry. & Nav. [*259] Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714; Arnau v. First Nat. Bank, 36 Fla. 395, 18 South. Rep. 790; Florida Cent. & P. R. Co. v.…
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Great Am. Ins. Co. of N.Y. v. Suarez, 107 Fla. 705 (Fla. 1932)…ion that a remittitur be entered by defendant in error. The practice of affirming judgments on conditions of remittitur originated in this State at an early date. See Simpson v. Daniels, 16 Fla. 677; Mclean v. Spratt, 20 Fla. 515; Gunning v. Heron, 25 Fla. 846, 6 Sou. Rep. 855; Savannah F. & W. R. Co. v. Davis, 25 Fla. 917, 7 Sou. Rep. 29. The theory on which remittiturs are allowed is that by so doing the appellate Court does not substitute its own judgment for that of the jury, but simply indicates by i…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. L'Engle, 22 Fla. 427 (Fla. 1886)
- Benbow v. Marquis & Co., 17 Fla. 441 (Fla. 1880)
- McKinnon v. McCollum, 6 Fla. 376 (Fla. 1855)
- Miller v. Hoc, 1 Fla. 189 (Fla. 1847)