Goulding Fertilizer Co. v. Johnson

Citations

• 65 Fla. 195
• 61 So. 441

Syllabus

<p>Equity Practice—Questions as to Admissibility of Evidence in Equity Appeals Cannot Be Raised in Appellate Court Unless Expressly Ruled Upon by Chancellor—Defense to Bill for Foreciosurb of Mortgage Given to Secure Purchase Money for Commercial Fertilizers—Allegata and Probata Must Coincide.</p> <p>1. No objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor and expressly ruled upon by him in the court below, at or before the final hearing of the cause.</p> <p>2. It is an established rule of chancery practice, and of pleading and practice generally that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred proof alone is insufficient. All the evidence offered in a case should correspond with the allegations and be confined to the issues.</p> <p>3. Where an answer to a bill for the foreclosure of a mortgage given to secure the purchase price of commercial fertilizer, alleges that the defendant had a sample of said fertilizer taken and chemically analyzed by the State Chemist in compliance with the provisions of Section 1271 of the General Statutes of 1906, and that upon such analysis by the State Chemist he discovered that he had been defrauded by reason of the fact that said analysis by the State Chemist showed that said fertilizer was deficient in the quantity of several material constituent elements, that it was represented to contain in the labels attached thereto by the complainant, and that said fertilizer was worthless, Ii eld: That under Section 1272 General Statutes of 1906, that provides for the recovery by the purchaser under such circumstances of double the amount demanded by the vendor for such fertilizer, where the defendant offers in his answer to set off such statut