F. N. CONRAD AND E. F. OATES, COPARTNERS AS CONRAD AND OATES, PLAINTIFFS IN ERROR,
v.
W. C. JACKSON, S. W. ALLEN, R. LEE WAFF AND J. W. WARD, PARTNERS AS HARWOOD TURPENTINE COMPANY, DEFENDANTS IN ERROR
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Conrad and Oates sued the Harwood Turpentine Company for commissions allegedly promised for selling the defendants' lands. The Florida Supreme Court affirmed judgment for the defendants, holding that the plaintiffs failed to prove the express promise to pay that was the essential element of their contract claim.
The plaintiffs failed to prove the express promise to pay that was alleged in the declaration. Although evidence showed services were performed and the amount was reasonable, there was no evidence of the actual promise to pay the specific amount sued for, which was required to establish the express contract claimed.
“The burden was therefore upon the plaintiff to prove the express promise alleged in the declaration as well as the consideration because together they comprised the contract of which the plea was a denial.”
Establishes that on express assumpsit, the plaintiffs had the burden to prove both the promise and consideration that comprised the contract.
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Join FLexlaw to unlock all legal intelligenceConrad and Oates, copartners, sued W. C. Jackson and others as the Harwood Turpentine Company partnership for commissions on the sale of certain lands…
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Ellis, J.
Conrad and Oates as copartners sued W. C. Jackson and others as copartners under the name of Harwood Turpentine Company upon a contract for the payment of commissions for the sale by the plaintiffs of certain lands owned by the defendants.
The declaration is not on the common counts for work done and labor performed nor account stated, but upon an alleged express promise to pay the plaintiffs a certain compensation for certain service.
There was a plea of never promised as alleged. That plea was the correct plea of the general issue. See Sec. 2666, Revised General Statutes, 1920.
It was a denial of the contract. The indebtedness of the defendants existed, if at all, according to the declaration, by reason of the existence of the alleged contract and the plaintiffs’ compliance with its terms on their part to be performed. The defendants met the issue at the threshold and said there was no such contract as that alleged.
The parties are bound by the issues made in the pleadings. The plaintiffs accepted the plea of never promised as alleged and went to trial upon it, thereby construing their own declaration as one on simple contract other than mere money or common counts enumerated in See. 2648, Revised General Statutes, paragraphs 1 to 12 inclusive, and those of a like nature.
While the declaration might be construed to be one on an implied or general assumpsit, the parties treated it as an express or special assumpsit. The burden was therefore upon the plaintiff to prove the express promise alleged in the declaration as well as the consideration because together they comprised the contract of which the plea was a denial. See Archibold’s'Nisi Prius, 174.
The plaintiffs failed in the evidence to meet this issue. Evidence was adduced to show that certain services were performed and that according to the local custom in such cases the amount charged therefor was reasonable and payable at a certain time. But such was not the issue. It was whether the service had been rendered (the consideration) and whether a promise to pay the amount sued for had been made. There was no evidence of such promise. The evidence |or the defendants did not dispute the consideration but did dispute the express promise to have been as laid.
In this view of the case it becomes unnecessary to dismiss the many errors assigned.
The judgment is affirmed.
Taylor, C. J., and Browne, J., concur. Whitfield, P. J., and West and Terrell, J. J., concur in the opinion.
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Logan v. The Bd. of Pub. Instruction, 118 Fla. 184 (Fla. 1935)…age 110. Rule 64, Circuit Court Rules, Law Actions. Jonas v. Burks, 87 Fla. 68, 70, 99 So. 252; Poppell v. Culpepper, 56 Fla. 515, 47 So. 351. “The parties to an action are bound by the issues made in their pleadings'.” Conrad v. Jackson, 89 Fla. 2, 103 So. 113. It was stipulated that the cause shall be tried by the Judge without a jury as authorized by Section 4358 (2691) C. G. L. By stipulation the cause was tried upon a statement of facts, which statement of facts' includes: “1. The school warrants me…
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Merchs. & Bankers Guar. Co. v. Mollie Downs, 128 Fla. 767 (Fla. 1937)…mendment as made apparently did not carry out what the trial Judge had in mind, and this Court is committed to the proposition that the parties to an action at law are bound by the issues made in their pleadings. [*788] Conrad v. Jackson, 89 Fla. 2, 103 So. 113. But where a' cause has been tried upon an immaterial issue Which does not determine the rights of the parties in the litigation, judgment should not be entered upon thé finding on such a plea. Evans v. Kloeppel, 72 Fla. 267, 73 So. 180. In this-cas…
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United Mercantile Agencies v. Bissonnette, 155 Fla. 22 (Fla. 1944)…went to trial, proof of the law of Ohio contrary to Florida law was not admissible, for the plaintiff was bound to confine its proofs to the issues joined by the pleadings. A.C.L. Ry. v. Crosby, 53 Fla. 400, 43 So. 318; Conrad v. Jackson, 89 Fla. 2, 103 So. 113; Logan v. Board of Public Instruction for Polk County, 118 Fla. 184, 158 So. 720; Norwich Union Indemnity Co. v. Willis, 124 Fla. 137, 168 So. 418. It follows that the trial judge was not in error in rejecting as evidence the certified copy of Ohio…
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