F. E. MULLER, DOING BUSINESS AS GULF CYPRESS LUMBER COMPANY, PLAINTIFF IN ERROR,

v.

OCALA FOUNDRY AND MACHINE WORKS, DEFENDANT IN ERROR

Whitfield, C. J.,

(after stating the facts.)

It is contended that the court erred in sustaining a demurrer to a portion of the second plea as originally filed, and also in striking a portion of the same plea on motion. As the portion of the plea which was overruled on demurrer was made a part of the amended second plea, no harm was done in sustaining the. demurrer to the same. 6 Ency. Pl. & Pr., 359; Bacon v. Green, 36 Fla. 325, 18 South. Rep. 870; Parkhurst v. Stone, 36 Fla. 456, 18 South. Rep. 594. The transcript does not contain the portion of the second plea which was stricken on motion, consequently it can not be considered here.

The court sustained the demurrer to a portion of the second plea as amended. This was error. 6 Ency. Pl. & Pr., 301, and authorities cited in notes 1 and 2. The plea contained proper subjects of set-off under the facts alleged, and the demurrer should have been overruled. The averments were sufficient to enable the defendant to set off the usable value, that is the fair market rental value of the engine, for the period covered by the delay in completing the repair of the engine according to the contract. Ocala F. & M. Works v. Lester, decided at this term; 2 Joyce on Damages, section 3388; 3 Sutherland on Damages, 3rd ed., sections 703, 704; 13 Cyc.

157. The demurrer, therefore, to the second plea as amended should have been , overruled,, even though all the other items of damage contained in the plea might not have been proper subjects of set-off. Cline v. Tampa Water Works Company, 46 Fla. 459, 35 South. Rep. 8; Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 South. Rep. 171. The referee refused to allow a third plea to stand which was filed without leave of. the cdurt subsequent to the ruling on the demurrer to the original second plea, but he permitted another third plea to be filed. As the rejected plea was not properly filed it is not a part of the record proper, and it should'have been brought here in the bill of exceptions if a review of the ruling of the referee in rejecting it is desired.

In permitting a third plea as set. out in the statement to be filed at the trial, the referee made the following ruling: “The referee holds that the defendant can not under this plea introduce any evidence of damages or loss of gains or profits, or any other, except what he actually paid to the hands and employes while the said mill was idle.” This ruling was excepted to a^d is assigned as error. Under the averments of the third plea allowed to be filed at the trial the defendant, on proving the agreement and other facts as stated in the plea, was entitled to show by proper evidence loss of profits that would have been derived from the sale of. products of his mill from Iona fide orders he was unable to fill on account of the failure of the plaintiff to comply with his agreement to repair the engine. The referee was, therefore, in error in ruling that testimony of this nature should be excluded. 13 Cyc. 36; Silver Springs O. & G.

R. Co. v. Van Ness, 45 Fla. 559, 34 South. Rep. 884; Brock v. Gale, 14 Fla. 523; Hodges v. Fries, 34 Fla. 63, 15 South. Rep. 682; Robinson v. Hyer, 35 Fla. 544, 17 South. Rep. 745.

Under the decisions of this court it-was error to allow this cause to go to triál in the absence of any reply to or a joinder of issue on, the third plea permitted to be filed by the referee. It is a plea which requires something more than a mere similiter to put it in issue. Asia v. Hiser, 22 Fla. 378; Livingston v. L’Engle, 22 Fla. 427; Livingston v. Anderson, 30 Fla. 117, 11 South. Rep.

270. The defendant in error contends that it was not required to file a replication, or to otherwise notice this plea, as it is a plea of set-off unaccompanied by a bill of particulars. The statute provides that “the defendant at the time of the filing of the plea, shall file therewith a true copy of the subject matter of the set-off.” Section 1069 Rev. Stats. of 1892. This provision of the statute is intended for the benefit of the plaintiff and he may waive it. If no bill of particulars is filed with a plea of set-off the plaintiff may move for an order requiring it, or move to strike the plea because it is filed without a bill of particulars; but if the plaintiff proceeds to trial upon a plea of set-off with no bill of particulars accompanying it, as was done in this case, the defect is thereby waived. See McKay v. Lane, 5 Fla. 268; Barbee v. Jacksonville and Alligator Plank Road Company, 6 Fla. 262, text 278.

It is considered unnecessary to discuss other assign ments of error presented in the record as they may not arise in another trial of the case.

The judgment is reversed at the cost of the defendant in error, and the cause is remanded for proper proceedings.

Carter, and Shackleford, JJ., concur. Taylor, P. J., and Hocker and Cockrell, JJ., Concur in the opinion.