Livingston v. Anderson

Citations

• 30 Fla. 117

Syllabus

<p>1. Toa declaration in covenant alleging performance of allco.enants on the part of jilaintiff, and a failure of performance on the part of defendant, the defendant pleaded that the plaintiff has not performed and carried out the contract set forth in the declaration as he agreed to do, and did not perform the work therein mentioned in a faithful and workmanlike manner: Held, on demurrer, that the plea was bad in not specifying the condition or conditions the performance of which is designed to be contested.</p> <p>á. Where a plea, or subsequent pleading responsive to a declaration or former pleading, sets up a new matter in ayoidance, a reply must be made to, or issue joined on, such pleading: without which it will be error to submit the case to a jury for trial, but the mere absence of a similiter to a plea, or subsequent pleading tendering- an issue, which will not cause a reversal of a judgment where the parties have voluntarily gone to trial without insisting on it.</p> <p>3. In an action of covenant on articles of agreement under seal involving the performance of conditions therein mentioned, instituted in January, A. D., 1885, and tried in November, A. D., 1887, after the plaintiff had closed his testimony, the defendant asked leave to amend his ideas by adding a plea of set-off involving- independent matters not necessary to determine the real question in controversy in the suit: Held, the refusal of the court to allow such plea to be filed, in the absence of any reason or excuse for not applying earlier, was not error.</p> <p>4. In a suit by a contractor on a contract to build a house, against the owner for a failure to pay the stipulated price, it is error for the court to charge the jury that, if they find from the evidence that the building does not come up to the requirements of the contract, and any deficiency in said building Was on account of the acts or interference of the defendant, and such deficiency was in consequence of such interference, the