Tedder v. Fraleigh-Lines-Smith Co.

Citations

• 55 Fla. 496

Syllabus

<p>Pleading and Practice—Alteration of Instrument Sued ON MUST BE SPECIALLY PLEADED--EVIDENCE-ERRORS MUST be Plainly Made to Appear—Peremptory Charge to Jury.</p> <p>1. Under the provisions of Rules 66 and 67 governing the practice* in the circuit courts in common-law actions, and of section 1465, General Statutes of 1906, an alleged alteration in a promissory note or other instrument sued upon must be specially pleaded.</p> <p>■ 2. Under a plea of non est factum, or under a general plea simply denying in toto the execution, making and delivery of the instrument sued upon, an alleged alteration in such instrument that has the effect of avoiding it cannot be-shown or proven' In order to prove such alleged alteration it must be specially alleged by plea.</p> <p>3. Where error is predicated upon the court’srefusal to permit the filing of an amended or additional plea, the proffered plea so excluded must be properly exhibited to the appellate courq. in the transcript of record, otherwise its exclusion by the trial court will be presumed to have been proper.</p> <p>4. Where the evidence fully makes out the plaintiff’scase, and there is no evidence to contradict or rebut it, a peremptory charge for a verdict in the plaintiff’s favor is proper.</p>