J. I. LANGSTON AND M. O. STRICKLAND, PARTNERS, AS LANGSTON & STRICKLAND, PLAINTIFFS IN ERROR,
v.
NATIONAL CHINA COMPANY, A CORPORATION, DEFENDANT IN ERROR
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In this contract dispute over the sale of baking powder, the Florida Supreme Court affirmed a judgment for the plaintiff where the defendant raised fraud as a defense. The court held that fraud must be specially pleaded with ultimate facts stated with certainty, and that the trial court did not abuse its discretion in excluding a preliminary question about alleged verbal inducements.
The court affirmed the judgment, holding that the trial court did not abuse its discretion in excluding the question. When fraud is raised as a defense, Rule 66 requires it be specially pleaded with the ultimate facts stated with certainty and directness. The excluded question was merely preliminary and did not necessarily indicate a purpose to disclose fraud, and no sufficient predicate of fraud had been presented.
“In pleading fraud the ultimate facts constituting the particular fraud should be stated with certainty and directness.”
Establishes the pleading standard required for fraud as a defense to a contract action
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Join FLexlaw to unlock all legal intelligenceNational China Company sold baking powder to Langston & Strickland. The defendants received a written order and the goods were shipped. At trial, the …
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Whitfield, C. J.
The defendant in error brought an action in the Circuit Court for Wakulla County against the. plaintiffs in error upon the common counts for money payable and for account stated. The copy of the cause of action attached to the declaration as required by the statute is a bill for baking powder sold by the plaintiff to the defendants. Two of the pleas aver fraud on the part of the plaintiff in the sale of the baking powder, but do not state the ultimate facts upon which the fraud is predicated.
There was a plea of the general issue. The plaintiff recovered judgment and the defendants took writ of er ror. The sufficiency of the pleas averring fraud does not appear to have been tested. At the trial the plaintiff proved a written .order for the goods by the defendants and the shipment of the goods to defendants. The following question was thereafter propounded to the defendant J. I. Langston: “Please state whether or not the plaintiff, prior to the execution by defendants of the contract to purchase from the plaintiff five hundred cases of Cascade Baking Powder, offered to defendants any verbal inducement to enter into such contract?” The ruling of the court excluding this question is the only assignment of error argued here.
Where fraud is relied upon as a defence to air action upon a simple contract Rule 66 of the Circuit Court Rules requires that it “shall be specially pleaded.'” In pleading fraud the ultimate facts constituting the particular fraud should be stated with certainty and directness. See Mutual Loan and Building Association v. Price, 19 Fla. 127; 9 Ency. Pl. & Pr. 686.
The sufficiency of a pleading alleging fraud is detcr•mined by the court upon demurrer. If the defect is matter of form a motion to strike or for compulsory amendment is the proper remedy.
The question excluded by the court was merely preliminary and does not necessarily indicate a purpose to disclose fraud. No abuse of discretion is shown in' its exclusion. In view of the mere abstract averments of fraud in the pleas and the absence of any indication as to its purpose this preliminary question does not appear to have been erroneously rejected, especially as it.sought to contradict or vary the written order for the goods, when no sufficient predicate of fraud had been presented. The judgment is affirmed.
All concur, except Parkhill, J., absent on account of illness.
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Citator
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Forbes v. The Fort Lauderdale Mercantile Co., 83 Fla. 66 (Fla. 1922)…tuting such fraud must be “specially pleaded.” Rule 66, Rules of Circuit Court — LawActions. If this is not done the plea will be held insufficient. Heathcote v. Fairbanks, Morse & Co., 60 Pla. 97, 53 South. Rep. 950; Langston v. National China Co., 57 Fla. 92, 49 South. Rep. 155; McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35, 14 Am. & Eng. Ann. Cas. 365; Mutual Loan & Building Assn. v. Price, 19 Fla. 127. [*70] If the specific facts averred in a plea upon which the charge of fraud is based do not c…
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Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA 1965)…fend against.8 Accordingly the judgment appealed is affirmed in part and reversed in part. Affirmed in part and reversed in part. . Florida Life Insurance Co. v. Dillon, 63 Fla. 140, 58 So. 643 (1912); Langston & Strickland v. National China Co., 57 Fla. 92, 49 So. 155 (1909). . Rule 1.9(b) F.R.C.P., 30 F.S.A.; Ocala Loan Company v. Smith, Fla.App.1963, 155 So. 2d 711. . Joiner v. McCullers, 158 Fla. 562, 28 So. 2d 823 (1947); Watson v. Jones, 41 Fla. 241, 25 So. 678 (1899). . Mizell v. Upchurch, 46…
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Heathcote v. Fairbanks, 60 Fla. 97 (Fla. 1910)
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- The Mut. Loan & Bldg. Ass'n v. Miles and John Price, 19 Fla. 127 (Fla. 1882)