F. A. POWELL, PLAINTIFF IN ERROR,
v.
J. COLIN ENGLISH, DEFENDANT IN ERROR
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The court reversed a judgment for the defendant, finding that the defendant's plea was insufficient and the evidence supported the plaintiff's claim for damages based on a promissory note. The court held that the trial court erred in not granting the plaintiff's motion for a new trial.
The court held that the defendant's plea was insufficient and tendered an immaterial issue. The court also held that the evidence preponderated in favor of the plaintiff, and therefore, the motion for a new trial should have been granted.
“The plea strictly construed tendered an immaterial issue.”
Establishes the court's finding regarding the insufficiency of the defendant's plea.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sued the defendant for $1500 in damages, based on a promissory note for $1000, money lent, and interest. The defendant filed a plea that…
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Buford, J.
In this case the plaintiff in error was plaintiff in court below and brought suit against the defendant for Fifteen Hundred ($1500.00) Dollars damages, filing his declaration in three counts. The first count declared upon a promissory note for One Thousand ($1000.00) Dollars with interest and attorney’s fees, this count having been amended to include the claim for attorney’s fees after.it was originally filed. The second count was for money before that time lent by the plaintiff to the defendant. The third count was for interest upon and for the forbearance by the plaintiff to the defendant at his request of divers sums of money and that afterwards in consideration of the premises the defendant promises to pay the same upon request but failed to pay the same when requested so.to do. Trial was had on the declaration and what was termed the first amended plea.
The plea is loosely drawn and does not traverse the allegation of the declaration that the defendant was indebted to the plaintiff in the sum of One Thousand ($1000.00) Dollars at the time of the execution of the note, nor does the plea allege that the consideration for which the defendant became indebted to the plaintiff in the sum of One Thousand ($1000.00) Dollars had failed. The plea at most only alleges that the inducement which caused the defendant to execute a note evidencing his indebtedness to the plaintiff had failed to materialize.
The plea strictly construed tendered an immaterial issue.
There was a demurrer to the plea which was overruled. This action of the court, however, is not made the basis of an assignment of error. The record discloses that the probative force and weight of the evidence preponderated in favor of the plaintiff and therefore the motion of the plaintiff to set aside the verdict and grant a new trial should have been granted.
For the reasons stated the judgment should be reversed and it is so ordered.
Reversed.
Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.
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Towles v. Azar, 112 Fla. 405 (Fla. 1933)…onsideration therefor is duly impeached under oath of the maker as provided by Section 4330, C. G. L., 2664 R. G. S. See: Wilson v. Maddox, 97 Fla. 489, 121 Sou. Rep. 805; Davis v. Leighton, 80 Fla. 594, 86 Sou. Rep. 564. Compare: Powell v. English, 97 Fla. 861, 122 Sou. Rep. 217. But before the rule putting the burden of proof on the plaintiff can apply, the consideration for the note sued on must, in accordance with Section 4330 C. G. L., 2644 R. G. S., be “impeached by the defendant under oath.” The ph…
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Crawford v. Hinson, 108 Fla. 630 (Fla. 1933)…The record discloses that the probative force and weight of the evidence preponderated in favor of the plaintiff, and therefore the motion of the plaintiff to set aside the verdict and grant a new trial should have been granted. Powell v. English, 97 Fla. 861, 122 So. 217. Atlantic Coast Line Railway Co. v. Alverson, 95 Fla. 73, 116 So. 30. B. L. E. Realty Co. v. Parker, 135 So. 8, 20 R. C. L. 273. The trial court erred in denying the motion for a new trial. It therefore follows that the case should b…
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Gulf Power Co. v. Rigby, 113 Fla. 739 (Fla. 1934)…mpa Water Works v. Mugge, 60 Fla. 263, 53 Sou. 943. It is well settled that where it is made to appear that the verdict rendered was contrary to the probative force and [*741] weight of the evidence a new trial should be granted. Powell v. English, 97 Fla. 861, 122 Sou. 217; B. L. E. Realty Corp. v. Parker, 102 Fla. 298, 135 Sou. 811; Crawford v. Hinson, opinion filed March 10, 1933, and reported in 146 Sou. 829. But, where a verdict has been rendered and motion for new trial is made upon the ground that…