Myrick v. Merritt

Citations

• 22 Fla. 335

Syllabus

<p>1. A demurrer to a plea reaches any substantial defect in the declaration, or the count thereof to which the plea has been tendered, but not a defect of mere form.</p> <p>3. The appellant, upon whom an order was drawn in favor of the appellee by H. & J., for five hundred and seventy dollars “balance due on the house we are now building for you,” accepted it as follows: “ I accept the above when the house is finished according to contract and delivered. To pay said sum by the first of January, 1885, interest to commence when said building is delivered :” Held, To be a conditional acceptance, and that no recovery could be had against the acceptor upon the instrument until the house has been finished according to the contract, whatever it might be, and delivered.</p> <p>3. The declaration upon a conditional acceptance must allege a performance of the condition.</p> <p>4. An allegation of a delivery of a house and that the acceptor has been in possession, is not a sufficient allegation of performance of the conditions that the house has been “finished according to contract and delivered,” upon which a draft is payable. The allegation that the plaintiff, the payee, gave the acceptor notice that he held himself ready to complete the house according to contract or to pay her a reasonable sum for his failure if she would point out to him the deficiencies or omissions, and that she refused to do so, and that she refused to permit him to enter the house for the purpose of completing it according to contract, is not a sufficient averment of performance of the conditions named in the acceptance, whether considered alone or in connection with above allegation of delivery to and possession by the acceptor.</p> <p>5. If, in any case of a non-performance by a drawer of the conditions named by the acceptor in the acceptance, the payee has a right of action against the acceptor who refuses to permit him to perform the conditions, which the drawer was under contract to perform, suc