JACKSON MIZELL AND WILLIAM MIZELL, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF J. MIZELL & BROTHER, PLAINTIFFS IN ERROR,
v.
JOHN J. UPCHURCH, DEFENDANT IN ERROR
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This case concerns whether a plaintiff's amended declaration sufficiently alleged facts to support a claim for deceit. The appellate court found that the declaration substantially complied with the requirements for pleading deceit, reversing the lower court's decision to sustain the defendant's demurrer.
Yes, the court held that the allegations in the amended declaration substantially complied with the requirements for pleading deceit, even though they were unnecessarily prolix.
“To maintain an action on the case for deceit, the plaintiff must allege, with reasonable certainty, and be prepared to prove (1) that the defendant made some representation to the plaintiff, meaning that he should act upon it; (2) that such representation was false, and that the defendant, when he made it knew it to be false; and (3') that the plaintiff, believing such representation to be true, acted upon it, and was thereby injured.”
This quote states the legal standard for pleading and proving deceit, which the court used to evaluate the sufficiency of the declaration.
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs filed an amended declaration alleging deceit. The defendant demurred to this declaration. The lower court sustained the demurrer, effec…
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Tayuor, C. J.
(after stating the facts). — The court below erred in sustaining the defendant’s demurrer to the plaintiffs’ amended declaration, quoted in the foregoing-statement.
In the case of Byard v. Holmes, 34 N. J. L. 296, one of the leading American cases of the class under discussion, we find the following succinct statement of the law as to the pleading and proof to be made in such cases: “To maintain an action on the case for deceit, the plaintiff must allege, with reasonable certainty, and be prepared to prove (1) that the defendant made some representation to the plaintiff, meaning that he should act upon it; (2) that such representation was false, and that the defendant, when he made it knew it to be false; and (3') that the plaintiff, believing such representation to be true, acted upon it, and was thereby injured.” While the two counts in this declaration are unnecessarily prolix, yet we think that its allegations substantially comply with the requirements of the rule here announced. The following cases deal with the same subject generally, and with the defences proper to be made and with the various phases and effect of the proofs pro and con: Sims v. Eiland, 57 Miss. 607; Viele v. Goss, 49 Barb. (N. Y.) 96; Meyer v. Amidon, 23 Hun. 553; Clopton v. Cozart, 13 Smedes & M. (Miss.) 363; Bean v. Wells, 28 Barb. (N. Y.) 466; Boyd’s Ex. v. Browne, 6 Pa. St. 310; Nevada Bank of San Franscisco v. Portland Nat. Bank, 59 Fed. Rep. 338; Felix & Marston v. Shirey, 60 Mo. App. 621; Wheeler v. Baars, 33 Fla. 696, 15 South. Rep. 584; Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678.
We think that the allegations of the declaration made a case sufficient to be plead to, and the demurrer thereto should have been overruled. The judgment of the Circuit Court is reversed with directions to overrule the demurrer of the defendant to the plaintiffs’ amended declaration, and for such further proceedings as may be consonant with law and the rules of practice. The costs of the appellate proceedings to be taxed against the defendant in error.
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Am. Int'l Land Corp. v. Hanna, 323 So. 2d 567 (Fla. 1975)…ulness and malice are not supported by specific allegations regarding the malicious conduct. Anderson v. Burwell Motors Co., 73 So. 2d 822 (Fla.1954); General Finance Corp. v. Sexton, 155 So. 2d 159 (1st Dist.Ct.App.Fla.1963). . Mizell v. Upchurch, 46 Fla. 443, 35 So. 9 (1903). . Fla.R.Civ.P. 1.120(b); Nantell v. Lim-Wick Constr. Co., 228 So. 2d 634 (4th Dist.Ct.App. Fla. 1970). . As stated, the remedy for that misconduct ■would have been specific performance, where Hanna would obtain his land with peti…
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Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA 1965)
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Upchurch v. Jackson Mizell and William Mizell, 50 Fla. 456 (Fla. 1905)…Hocker, J. This is the second writ of error in this case. The decision of this court on the first consideration is reported in 46 Fla. 443, 35 South. Rep. pages 9 to 13 inclusive, which exhibits the two counts of the declaration, the demurrers thereto and the rulings thereon. After the reversal here the plea of not guilty was filed on the 30th of July, 1904, a trial was had in November…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wheeler v. Baars, 33 Fla. 696 (Fla. 1894)
- Watson v. Jones, 41 Fla. 241 (Fla. 1899)